28 June 2011

Ten Questions

As noted earlier, the Governance Working Group of the Anglican Church of Canada has issued a report outlining the legal and canonical implications of the adoption of the proposed Anglican Covenant. The report invites responses to ten questions. Here are the questions along with my responses.

1. Should the imprecision in the definitions of a number of terms used in the Covenant concern General Synod when it considers whether or not to adopt the Covenant?

Imprecision or elasticity of meaning can be a strength in documents such as theological consensus statements and liturgical texts. In these sorts of texts elasticity allows for agreement on wording by a broad cross section of people because of, not in spite of, the imprecision. We can agree to use the same words without having to mean precisely the same thing. But the Covenant is not a consensus document. It is a set of standards, a set of commitments and undertakings, and a process for measuring whether a given Church is fulfilling its commitments in light of those standards.

The GWG report correctly notes that imprecision in the standards makes it impossible for a Church to know precisely what commitments it is making in adopting the Covenant. When a question arises as to whether a given controversial action is compatible or incompatible with the Covenant, elasticity of meaning becomes a serious liability, because without clear criteria for determining compatibility, inevitably any decision rests heavily on the discretion of the decision-making body and risks being criticized as arbitrary. The imprecision in several definitions in the Covenant thus undermines the credibility of any decision that might in future be made pursuant to the Covenant, and introduces risk that protagonists in a dispute may refuse to accept such a decision. The likely outcome is increased conflict rather than conflict resolution.

2. Should the lack of natural justice and procedural fairness in section 4 concern General Synod when it considers whether or not to adopt the Covenant?

The principles of natural justice are fundamental to producing fair outcomes in any judicial or quasi-judicial process. These principles are essential to the administration of justice in both civil and canonical realms. They are rightly guaranteed in Canon XVIII on Discipline. It is essential to ensure that decisions are not only fair, but that they are demonstrably fair by design rather than by good fortune, and seen to be fair. Without guarantees of procedural fairness, the credibility of the dispute-settling process in section 4 is undermined, and there is a real risk that a decision could be reached which is demonstrably arbitrary and unfair. Because all human processes are fallible, the preservation of fairness must depend on the design of the process, and not on the good will of the members of the tribunal. Fairness is a Gospel value, and the Church should set an example to the world in establishing processes that are demonstrably fair. Implementing a process which is demonstrably unfair is contrary to the fourth Mark of Mission (“to seek to transform unjust structures of society.”) Given that this Mark of Mission is itself part of the Covenant (s. 2.2.2.d) the dispute-settling process in section 4.2 is arguably incompatible with the Covenant.

What is worrisome is that it is conceivable that the outcome of a disciplinary proceeding pursuant to Canon XVIII could be submitted to the Standing Committee for review. Thus a process that guarantees natural justice could be subject to review by a process that violates natural justice.

3. If the Covenant were adopted by General Synod, what wording should be included in the resolution by General Synod to ensure clarity about General Synod’s intention about whether the Covenant does or does not affect the doctrine of the Anglican Church of Canada?

The problem suggested by this question is the lack of clarity about the implications of adopting the Covenant, and specifically whether the Covenant affects the doctrine of the Anglican Church of Canada. Elsewhere I have argued that the Covenant's procedures could overrule a doctrinal statement made by the General Synod pursuant to its jurisdiction over the definition of the doctrines of the Anglican Church of Canada (Declaration of Principles s. 6(i)). If that is what is intended by the General Synod in adopting the Covenant, then it would amount to ceding jurisdiction, which point would have to be very clear prior to adoption. If it is not what is intended, the question is whether the General Synod in fact does intend to adopt the Covenant. Although it would be a trivial matter to include a clause in the adopting resolution to the effect that “adoption of the Anglican Covenant shall not be interpreted to affect the doctrine of the Anglican Church of Canada or the General Synod's jurisdiction over doctrine”, the question is whether such a clause would be consistent with adoption of the Covenant. Adding such a proviso to the adoption of the Covenant would amount either to a partial or conditional adoption or to a unilateral amendment of the Covenant, neither of which is contemplated by the Covenant.

4. If the Covenant were adopted by General Synod, what should be the relationship between the Covenant and the Declaration of Principles and the Constitution of the Anglican Church of Canada? What wording should be included in the resolution by General Synod to achieve this?

I believe that the Covenant, if adopted, would be constitutional or quasi-constitutional in effect. That being the case, the resolution to adopt the Covenant should make this clear, most straightforwardly by including reference to the Anglican Covenant in the Declaration of Principles. One way to accomplish this would be to insert a new clause 7(a) stating “the General Synod, and the Provincial and Diocesan Synods in the Anglican Church of Canada shall exercise their authority in their several jurisdictions in accordance with, and subject to the procedures of, the Anglican Covenant.” Section 9(a) would have to be amended as well, inserting “With the exception of section 7(a)” at the beginning. The effect of the first amendment would be to make all Synods in Canada explicitly subject to the terms of the Anglican Covenant. The second amendment would do the same with respect to bishops exercising the (undefined) powers inherent in the office of bishop.

Including the Covenant in the Declaration of Principles is, of course, contrary to the assurances that its adoption does not imply any constitutional change or limitation in autonomy. (Section 4.1.3)

5. What consultation with (or approval by) the Provincial and Diocesan Synods [is required] before General Synod considers a resolution to adopt the Covenant? Beyond any legal requirements, what consultation (or approval) should take place?

If the Covenant is to be included in the Declaration of Principles as suggested above, then it requires a two-thirds majority of each Order at two successive sessions of the General Synod as well as consent of all the Provincial Synods. (Declaration of Principles ss. 11(a)(ii-iii)). Beyond that, the dioceses should also be consulted, particularly in light of the limitations on the exercise of their authority implicit in the adoption of the Covenant. Although there is no mechanism for the dioceses to signify their assent, the Rules of Order do provide for a vote by dioceses (Rule 20). Ideally, every Diocesan Synod should be requested to debate the Covenant and to signify their intention to be bound by it. No Province should give its consent without the consent of the dioceses, even though this is not constitutionally required. Nevertheless, if adoption of the Covenant is tantamount to a constitutional change for the General Synod, the same is true for the Provinces and dioceses.

6. If General Synod were to adopt the Covenant, what steps would have to be taken to be able to fulfil the obligation under section 4.2.9 for there to be adequate mechanisms within the Canadian Church to ensure that all parts of the Canadian Church comply with the Covenant? What steps would need to be taken by General Synod, the Provincial Synods and the Diocesan Synods to put in place such a mechanism?

If the Covenant were included in the Declaration of Principles as suggested above, then any action contrary to the Covenant by any Synod would be ultra vires. What would be required would be some kind of constitutional mechanism to nullify any action by a Synod. One way to accomplish this would be to give authority of nullification to either the General Synod or the Council of General Synod with respect to Provincial and Diocesan Synods, and perhaps to the Supreme Court with respect to the General Synod, unless the declaration of incompatibility by the Standing Committee is understood itself to nullify any action in question.

The General Secretary could act as the Covenant Compliance and Liaison officer.

The difficulty in specifying mechanisms to ensure compliance is that it is impossible to know in advance exactly what actions might be incompatible with the Covenant and hence what would constitute compliance. Any compliance mechanism would have to be reactive, taking action only when the Standing Committee has declared an action by a Canadian synod to be incompatible with the Covenant.

But beyond synodical action, it is possible to contemplate that an action by a bishop might be declared incompatible with the Covenant, and thus also ultra vires. For example, a bishop's decision to ordain a candidate could be overturned by the Standing Committee in response to a question. Or even the election and consecration of a bishop could be nullified. The implications of such a ruling are obviously serious, especially if it were to occur well after the fact. There is nothing in the Covenant that prevents it from being used retroactively. In such a case it is difficult to imagine how compliance could be ensured. In fact, ensuring compliance could conceivably prove so onerous a task that the General Synod might seriously consider withdrawing from the Covenant.

7. Is the strong synodical place of the laity in the Canadian Church sufficiently upheld in the decision-making processes in the Covenant?

Since 1857 the clergy and laity of the Anglican Church of Canada have had authority to meet in Synod to determine the doctrine, discipline and policies of the Church. The same question could be asked with respect to the place of the lower clergy in Canadian synods. The chief decision-making authority in the Covenant process is centred on the Standing Committee, of which 50% is Primates and 50% representatives of the Anglican Consultative Council. The latter half would comprise bishops, clergy and laity, with no rules about the proportions of each. Where bishops are a small minority in Canadian Synods, and clergy and laity approximately equally represented, this proportion is not present in the Standing Committee. Thus the significant role played by both laity and lower clergy in Canadian synods is omitted in the mechanisms of the Covenant. Nor is there any youth representation in the Standing Committee. In practice, the preponderance of authority under the Covenant would be held by bishops and particularly by Primates.

8. Would there be a difference between General Synod’s passing a resolution to “adopt” the Covenant (the term used in the Covenant), “accede” to the Covenant (the term used by the Church in South-East Asia), or “subscribe” to the Covenant (the term used by the Church of Ireland)?

It is not clear what either the Church of Ireland or South-East Asia intended by choosing a verb other than “adopt” in relation to the Covenant. The Covenant does not contemplate any verb other than “adopt.” What is clear from the Church of Ireland's debate is that, whatever they intended by choosing “subscribe”, they understood the term to mean something different than “adopt”. Thus it would appear that the Church of Ireland explicitly chose not to adopt the Covenant. Although the precise difference would depend on the verb chosen, there would be a difference in not using the verb “adopt.”

In my view there is no value in the Anglican Church of Canada choosing to employ a verb not contemplated by the Covenant. Either the General Synod will intend to adopt the Covenant or it will not. In either case, the action taken by the General Synod should be unambiguous, and not subject to debate or interpretation.

9. What would be the effect of a decision by General Synod not to adopt the Covenant?

Under the Covenant, the only effect of a decision by the General Synod not to adopt it would be that the Anglican Church of Canada would not be bound by the Covenant and would be ineligible to participate in the dispute-settling procedures in section 4.2, or to propose amendments to the Covenant (section 4.4.2). Some commentators have suggested that failure to adopt the Covenant would be tantamount to withdrawing from the Anglican Communion. But the Covenant neither states this, nor defines membership in the Anglican Communion.

Whether there would be any other consequences to a decision not to adopt the Covenant is impossible to predict. Any further consequences would not be “relational consequences” within the meaning of the term in the Covenant.

10. Are there any other legal or constitutional implications or consequences which have not been identified by the GWG which would be raised by adopting the Covenant?

The GWG report is both thorough and comprehensive. That said there is one question that has not been touched on: if the General Synod of the Anglican Church of Canada were to adopt the Covenant, would the Standing Committee and the dispute-settling mechanism of section 4.2 supersede the authority of the Supreme Court of Appeal, described in Canon XX as “final”?

The GWG is to be commended for their excellent work.

17 June 2011

Canadian Legal Analysis

The Governance Working Group of the Anglican Church of Canada has released its report on the legal and constitutional implications of the proposed Anglican Covenant, as requested by the General Synod. In addition to the report, there is also an executive summary.

The report analyses the proposed Covenant under four headings:

Definitional Concerns lists no fewer than nine key terms in the proposed Covenant that are left undefined. This is a concern because, as the report states, “the Covenant is more than a statement of belief or intention; it is a legal document.” Exactly. And as a legal document it requires clarity of definition. For without clarity, the report says, it is “difficult to know the full nature and extent of the obligations which would be undertaken by adopting the Covenant.” That being the case, it is difficult to understand how any Synod can responsibly vote to adopt the Covenant.

Under the rubric of Procedural Concerns, the report discusses seven difficulties with the dispute-settling process in the proposed Covenant. For example, the report raises concerns about the vagueness of the process in section 4.2. (See my comments in this vein here.) It also notes that the process fails to guarantee the principles of Natural Justice. I have also analysed this issue in two parts here and here. Furthermore, there is no right or mechanism to appeal a decision of the Standing Committee.

The report also considers Constitutional Concerns for the Canadian Church. These include issues such as the assumption in the proposed Covenant that all Churches are unitary bodies, but the Canadian Church is not. It is thus not obvious how the obligations of the Covenant would be enforced in Canada, assuming we could accurately determine what those obligations are. (For non-Canadians, I suggest you read this section anyway and then ask whether the concerns apply to your own Church.)

Finally, the report discusses Consequences of Not Adopting the Covenant. Actually, aside from not being able to participate in the dispute-settling procedures and being exempt from those procedures, there don't seem to be any significant consequences. A point worth pondering.

The report also solicits feedback on a series of ten questions. I suggest that, having carefully read the report, those questions provide an indispensable framework for the study of the proposed Covenant. In my view, they should be asked by every member of every Synod prior to voting on a resolution to adopt the Covenant.

The report provides a thorough analysis of the legal and constitutional implications of adopting or not adopting the proposed Covenant. Although it is written from the Canadian perspective, I suggest that it would nevertheless be a valuable resource for Anglicans around the world.

General Synod also requested a theological analysis of the proposed Covenant. I look forward to it eagerly. The legal analysis has established a very high standard.

14 June 2011

Canadian Study Guide

The Anglican Church of Canada has launched a study guide for the proposed Anglican Covenant, supported by a website with a variety of links to resources.

Designed for use in a variety of contexts, the Canadian study guide encourages an in-depth discussion in three sessions. The guide itself invites participants to consider both advantages and disadvantages, ways in which the proposed Covenant might enhance or impede the mission of each Church and the Communion. To the credit of the authors, this study guide does not seem to be designed to steer the discussion to a pre-determined outcome, such as adoption of the proposed Covenant.

The supporting web site includes links to a variety of resources, both pro and con, including even the No Anglican Covenant Coalition web site. My only question about the web resources is that the NACC web site is clearly identified as coming from a group opposed to the Covenant (just in case anyone couldn't deduce that from the name), but the Anglican Communion Institute, which is also linked, is not described. An unsuspecting user of the Canadian resource list might not realize that the ACI is not an official organ of the Anglican Communion or indeed of anything. Which is not to say that their comments should not be linked. The comprehensiveness of the links is a strength.

Another question for me has to do with the commentary on the proposed Covenant, which accompanies the study guide. The commentary on sections 1-3 of the Covenant inexplicably stops after Section 1. Is it that the authors of the study guide had nothing to comment on with respect to Sections 2 and 3? Is this an oversight? Or were they waiting for further materials to be released?

On the matter of other materials, there is still the promise of analyses of the proposed Covenant from theological and legal perspectives. We await the release of those two documents from the Faith, Worship and Ministry Committee, and from the Governance Working Group. If the study guide is any indication, the analyses are likely to be very helpful. I suspect that once those are in place there will be a good and very comprehensive package of resources for a serious study of the proposed Covenant, which should be of use well beyond the borders of Canada.

But the release of the study guide in advance of these other two documents is unfortunate timing. It would have been better to wait and put them all out together, as any study without a full set of resources, and especially without the detailed analysis of the proposed Covenant that was requested by the General Synod, will be both incomplete and premature.

I hope that anyone interested in conducting a study of the proposed Covenant will wait for the rest of the materials. Once they are released, then let it be studied in detail.

08 June 2011

Not Punitive?

Part of the narrative pushing the proposed Anglican Covenant toward adoption is the assertion that relational consequences are not punitive in nature. They are, the narrative says, simply the natural outcome of actions taken by a Church that others suggest may be incompatible with the Covenant. So, if a Church insists on exercising the autonomy supposedly guaranteed by the Covenant in a manner which is rash or inappropriate or irresponsible, then certain consequences ensue and that's life. It's your fault that you got wet because you went out in the rain without an umbrella. Tough.

But, I respond, if these consequences are natural then they are presumably predictable. And if they are natural, then they hardly need to be recommended or implemented, do they? They will just happen. When you go out in the rain sans umbrella, no-one has to recommend that you get wet. And the implementation requires no human intervention. So why the need for soliciting advice, and issuing recommendations?

Besides, continues the narrative, these are after all only recommendations. Whether consequences ensue or not will depend on whether the recommendations are accepted by whomever they are issued to. It is, after all, up to each Church or Instrument of Communion to decide whether or not to accept the recommendations. (See section 4.2.7)

Yes, but. Section 3.2.1 commits signatory Churches to support the Instruments of Communion “and to endeavour to accommodate their recommendations.” And given that the Standing Committee acts for two Instruments (the Anglican Consultative Council and the Primates' Meeting) and includes a third (the Archbishop of Canterbury) it seems that failure to “accommodate [its] recommendations” would in itself be incompatible with the Covenant. And although the Instruments of Communion themselves are not signatories, and thus not bound by the proposed Covenant, it would be very difficult to imagine the Anglican Consultative Council, or the Primates' Meeting or the Archbishop of Canterbury rejecting recommendations from the Standing Committee, given that its membership consists wholly of people from those three Instruments, and the process of determining recommendations involves input from the first two. (Section 4.2.4)

Anyway, says the narrative, the relational consequences would already exist. It's not like the Standing Committee would be recommending something that's not already in place.

Really? It's true that there might be a state of impaired communion between two Churches or perhaps two groups of Churches before the dispute giving rise to that state reaches the Standing Committee. But that's not the only possible relational consequence. And up to that point it would be unilateral. So, yes, I suppose we could see the Standing Committee giving sanction to a unilateral declaration of impaired communion. And would that “recommendation” apply only to the Church which has made the declaration, or would it also be made to the other Churches of the Communion, in order to isolate the “offending” Church? And what of relational consequences that involve a limitation of or suspension from participation in an Instrument of Communion? Obviously that state of affairs would not exist before the recommendation is made.

Finally, says the narrative, relational consequences are just that. They're not a punishment, just the outcome of a simple nexus of cause and effect.

How genteel. And a penitentiary is nothing more than a place where people go to consider the naughtiness of their ways and repent thereof. A place of penitence.

No matter how you slice it, relational consequences are coercive in nature. Look at section 4.2.5:
The Standing Committee may request a Church to defer a controversial action. If a Church declines to defer such action, the Standing Committee may recommend to any Instrument of Communion relational consequences which may specify a provisional limitation of participation in, or suspension from, that Instrument until the completion of the process set out below.
In other words, stop what you're doing until we make a decision or else. It may not be punishment in the sense of retribution, but it does fit the definition of punishment as “a caution against further transgression.” (Shorter Oxford English Dictionary) The purpose of the recommendation of relational consequences is to influence behaviour. It is the use of coercive power. And whether that power is used provisionally during the investigative phase of the dispute settling process, or at the outcome of the process doesn't make any difference. Relational consequences are just a rose by another name. And they smell as sweet.

Recommendations of relational consequences aren't punitive? Somewhere I think I've heard that line before....
'Do you know where you are, Winston?' [O'Brien] said.

'I don't know. I can guess. In the Ministry of Love.'


'And why do you imagine that we bring people to this place?'

'To make them confess.'

'No, that is not the reason. Try again.'

'To punish them.'

'No!' exclaimed O'Brien. His voice had changed extraordinarily, and his face had suddenly become both stern and animated. 'No! Not merely to extract your confession, not to punish you. Shall I tell you why we have brought you here? To cure you! To make you sane!'