Andrew Goddard has written a defence of the controversial fourth section of the proposed Anglican Covenant. Goddard focuses on the fourth section because, as he correctly notes, it “for many is most troublesome. It was the section which changed the most through the various drafts and the section which continues to be most objectionable to critics of the Covenant.” Of course, as Goddard notes, it is really section 4.2 that is the most controversial part. Sections 4.1, 4.3 and 4.4 on adoption of, withdrawal from, and amendments to the Covenant are less controversial and necessary in some measure. Not that these are perfect, but they do seem to be necessary elements of a Covenant if one is to be adopted. Not much controversy there. Move along.
But what of section 4.2? Well, it's self-evident that some kind of dispute-settling mechanism is necessary in an agreement in case someone breaks it. Really, Dr Goddard? It's funny that such a notion never occurred to the authors of the Porvoo Common Statement. But, asserts Goddard, “if we covenant together by making joint affirmations and commitments to one another then someone is clearly wronged if another party to the covenant denies those affirmations or breaks commitments.” Actually, it's not at all clear that “someone is wronged” in such circumstances. The whole idea of a Covenant emerges from a very nasty conflict over who is allowed, and at what level of the Anglican Communion, to determine what constitutes legitimate development of the faith and practice of the Anglican expression of faith. The conflict exists because: (1) some churches have described developments in some other churches as tantamount to denying or illegitimately altering the faith; and (2) because those churches claim to have been wronged or injured or aggrieved as a result of said developments. But in fact, the first claim has not been satisfactorily proven. And the claim to be wronged has never been demonstrated, but merely asserted. Yes, these churches, or at least their leaders, do seem to be genuinely upset. But being upset or offended is not the same as being wronged. So in fact, Goddard's assumption is at the very least open to debate.
But if the need for a dispute-settling mechanism in the proposed Covenant is not so self-evident as Goddard would have us believe, the process itself is not as benign as he depicts it, either. Goddard tells us that “part of the aim of the Covenant has always been to discern if we can agree together what is to be done in such circumstances rather than having to make up processes in the context of addressing the conflict.” Well, if such a mechanism were necessary, it would certainly be better to have a clear process in place in the event of a dispute than to make it up as we go along. But in fact the whole process of developing the Covenant has been an exercise in making it up as we go along. And, as I have shown, the process the Covenant proffers isn't very clear at all, and in fact will lead to rather a lot of improvisation.
And not only is the process vague, but the role of the Standing Committee is not as benign as Goddard would have us believe. Goddard tries to reassure us that the Standing Committee is not some kind of Star Chamber. But he's not very convincing.
Goddard suggests that “the Covenant both embeds the standing committee within the wider structures of the Communion but also severely constrains its powers.” For evidence he cites the provisions in section 4.2.2 that the Standing Committee is responsible to the Anglican Consultative Council and the Primates' Meeting and that it “shall be supported by such other committees or commissions as shall be mandated to assist ... and to advise it....” But far from giving comfort these two points are worrisome. First, the Standing Committee is indeed responsible under the Covenant to the Anglican Consultative Council and to the Primates' Meeting. But let us recall the composition of the Standing Committee. It is made up entirely of people who are members of either the Anglican Consultative Council or the Primates' Meeting. Or both in at least one case. So if this is accountability it is circular.
Secondly, it is not at all clear what “other committees or commissions” might “be mandated” to assist and advise the Standing Committee, nor by whom they might be mandated, nor with what role. Is the Standing Committee bound to receive their assistance and to accept their advice? And what of the Standing Committee's discretion to “take advice from such bodies as it deems appropriate” in doing its work? (Section 4.2.4) In fact, the Standing Committee has complete discretion to consult whomever it sees fit to consult, or no-one, in coming to its conclusions. And given that it has no criteria to follow either in determining whether a controversial action is “incompatible with the Covenant” or what “relational consequences” should ensue, the whole process is bound to be arbitrary.
Ah, soothes Goddard, but the Standing Committee has no real power anyway, merely to request that a Church defer a controversial action, and to recommend relational consequences. (Section 4.2.5) And, of course, declare an action or decision “incompatible with the Covenant.” (4.2.6) But, says Goddard, “it cannot do these on its own initiative but only 'on the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting' (4.2.6)” Actually, that's not clear from the text at all. For one thing, the Standing Committee is not necessarily required to solicit the advice of the Anglican Consultative Council or the Primates' Meeting. The Standing Committee has discretion to consult whomever it pleases, and to determine whether it is appropriate to include either of its parent bodies in that list. Section 4.2.6 seems to assume that the Standing Committee will have received some advice from these two bodies, but what if it has not? Or what if the advice of one of these two bodies is incompatible with the advice of the other? It does not follow that the Standing Committee is precluded from coming to is own conclusions on the matter at hand.
And even if Goddard's reading were correct, let us recall the circularity of the whole set-up: members of the Anglican Consultative Council and the Primate's Meeting consult their own groups and confer together to come to a conclusion, and then to make recommendations back to those bodies, which will determine whether or not to act on those recommendations. They are consulting themselves, advising themselves and then making recommendations to themselves. There is a word for that: overlapping roles. And overlapping roles is a violation of the principle of nemo judex in sua causa debet esse (“no-one must be a judge in his own case”), a fundamental principle of Natural Justice. The problem here, as I have shown, is one of institutional bias.
If the absolute discretion given to the Standing Committee to act without criteria, consulting whom it pleases following a vague process, and then issuing its decisions does not make it a Star Chamber, then I don't know what would. Section 4.2 is a recipe for improvisation and arbitrariness. And even if in this improvisation the Standing Committee manages by happenstance to fulfil the requirements of the first principle of Natural Justice (audi alteram partem – “hear the other side”), given the overlapping roles of Anglican Consultative Council, Primates' Meeting and Standing Committee (not to mention Archbishop of Canterbury, who is a member of all three!) section 4.2 of the proposed Covenant violates the second principle of Natural Justice.
The No Anglican Covenant Coalition has put out a public call for the best arguments in support of the proposed Covenant. So, send in the theologians. I'm sure that Andrew Goddard is a very competent theologian. But his comments on section 4.2 of the proposed Covenant suggest that he is out of his depth when it comes to international canon law. We really shouldn't send a theologian to do the job of a canonist.