Canonical History made at General Synod

In adopting Resolution A143 (pdf), the General Synod of the Anglican Church of Canada has made history. The resolution authorized three sets of liturgical texts for trial use for the next three years. The texts in question are seasonal forms of the daily offices, collects for the Revised Common Lectionary and an inclusive language Psalter. These are all available on-line (at the time of writing the web page there still says they “are encouraged for use where permitted by the diocesan bishops.”)

Although liturgists will appreciate these new texts, none of this sounds particularly ground-breaking, but on one very specific point, the resolution certainly was. What made history was the choice of verb in the resolution: “authorize”.

One might be forgiven for a bit of confusion about the significance of this verb. After all, surely the General Synod has the authority to authorize liturgical texts, and periodically does so, so why is this worthy of even a nano-second of thought? The fact is, that although the General Synod of the Anglican Church of Canada does have the authority to authorize liturgy, it has studiously avoided exercising this authority since it approved the 1962 Book of Common Prayer. Rather, since that time the General Synod has preferred the route of producing liturgical texts and commending them for use, but only under the auspices of the local diocesan bishop, in his or her exercise of the power of jus liturgicum.

Liturgical law in the Anglican Church of Canada is not very developed – a comment that might equally be made in a number of areas of our canon law – so much of the authority over liturgy that is fleshed out and clearly specified in other Anglican provinces is left to some combination of custom and the bishop’s jus liturgicum (which some would argue is also customary). What is clear is that it is a fundamental principle of Anglicanism that in public worship clergy are permitted to use only texts that have been approved by “lawful authority.” We find this stated in so many words in The Principles of Canon Law Common to the Churches of the Anglican Communion – Principle 56 (2008: Anglican Consultative Council.) The principle is given force in the Oaths and Subscriptions taken by clergy at the time of their licensing. Thus, for example, clergy in the Ecclesiastical Province of Rupert’s Land are required to swear that “in Public Prayer and Administration of the Sacraments, I will use the form in the [Book of Common Prayer] and none other, except so far as shall be ordered by lawful authority.” (Canon VI)

The General Synod’s Declaration of Principles sets out the distribution of “lawful authority” in a variety of provisions, some explicit and some implicit. Section 6(j) gives the General Synod jurisdiction over “the revision, adaptation and publication of a Book of Common Prayer and a Hymnal for the Church.” Section 7(b)(viii) gives authority to the Provincial Synods to authorize “special forms of prayers, services, and ceremonies for use within the province, for which no provisions have been made under the authority of the General Synod or the House of Bishops of the Anglican Church of Canada.” Implicitly, then, both the General Synod and the national House of Bishops must have authority to authorize liturgy beyond the Book of Common Prayer.

Finally, section 9(a) of the Declaration of Principles specifies that “nothing contained in sections 6, 7 and 8 shall limit or affect the powers, jurisdiction and authority inherent in the office of bishop, or exercised collectively by the bishops of the Church sitting as the House of Bishops of any province or of The Anglican Church of Canada.” The power to authorize liturgy locally in a diocese – a central part of jus liturgicum – is understood to be one of those “powers … inherent in the office of bishop” and this provision suggests that it could be exercised collectively by one of the five Houses of Bishops (four provincial and one national).

But if the General Synod has authority to authorize liturgy, it has studiously avoided using it, even when given the opportunity. During the 1970’s – a period of intense activity on liturgical reform across the Anglican Communion – Canadian Anglicans developed a number of rites for trial use. In 1975, General Synod considered a motion “that the Holy Eucharist, An Alternative Canadian Use ... be approved as an alternative form to the Book of Common Prayer service.” After amending the motion to include similar rites from the Episcopal Church and the Church of England, the General Synod then amended the motion to change the word “approved” to “commended”. The concern seems to have been that the General Synod wanted to leave the actual authorization of trial liturgy to the local diocesan bishop.  Perhaps someone present remembered Resolution 45 of the 1897 Lambeth Conference, which “recognise[d] the exclusive right of each bishop to put forth or sanction additional services for use within his jurisdiction, subject to such limitations as may be imposed by the provincial or other lawful authority.” Even so, the Resolution certainly doesn’t say that the General Synod can’t exercise its own authority (and even if it did, being a Lambeth Resolution it has no authority over any General Synod anyway.)

Similarly, when it came time to collect experimental liturgical texts into a Book of Alternative Services (1985), the General Synod chose not to authorize the book but again simply to commend it for use where authorized by the Ordinary. (It says as much in the Introduction). This is in stark contrast to other Provinces, including the Church of England, the Anglican Church of Australia, the Church of the Province of Southern Africa, and the Anglican Church of Aotearoa, Polynesia and New Zealand – to name a few – that all published alternative prayer books and authorized them in parallel to the Book of Common Prayer.

Since the Book of Alternative Services was published, other supplemental and trial use rites have also been developed, including three supplemental Eucharistic prayers, orders for Morning and Evening Prayer and Compline, and a Book of Occasional Celebrations, all of which have been subject to the authorization of the local Ordinary.

But now, with Resolution A143, General Synod has finally chosen to authorize new liturgical texts, albeit only for a three-year period. Historians take note.

I have a dream that one day the General Synod will codify its liturgical law to clarify the various powers over liturgy rather than depending on someone’s memory of custom. That project may never come to fruition, but at least while we wait General Synod has finally chosen to exercise its authority.

Calling for more study

Note: there hasn't been much recent activity on this blog because there hasn't been much recent activity with respect to the proposed Anglican Covenant. I have some ideas about other topics I would like to pursue in this space, but it was initially set up to address the Anglican Covenant. I have decided to reserve this blog for that topic until the disposition of the Covenant has been determined. Once that happens, I will look to other topics as the muse strikes. In the meantime, posts to this blog will inevitably be sporadic.

As previously noted, the General Synod of the Anglican Church of Canada, at its 2010 meeting, called for study of the proposed Anglican Covenant, to be supported by the production of three documents: a study guide, a legal analysis and a theological analysis. We received an excellent study guide and an equally excellent legal analysis in short order. Last November we were disappointed to receive a flimsy report from the group that had been asked for the theological analysis. I would make a lame joke about how it ought to have been titled The Dogma Ate My Homework, except there was no theology in it.

Resolution A-137 of the General Synod of 2010, having called for study of the Covenant, then “direct[ed] the Council of General Synod, after this period of consultation and study, to bring a recommendation regarding adoption of The Covenant for the Anglican Communion to the General Synod of 2013.”

Yesterday, at its last meeting before the General Synod to be held in July, the Council of General Synod (CoGS) decided on the resolution that it will present to General Synod. To wit, the resolution will:

Request the conversations in the Anglican Church of Canada about the proposed Covenant for the Anglican Communion continue during the next triennium, and

Request the ACWG to monitor continued developments about the proposed Covenant for the Anglican Communion and report to the spring 2016 meeting of COGS and

Direct COGS to bring a recommendation regarding the adoption of the Covenant to General Synod 2016.

You can see the full discussion toward the end of the CoGS notes for March 15^th here.

There are several ways to read this development.

First, and most obviously, CoGS is not doing what it was directed to do by the 2010 General Synod. That is, it is not “bring[ing] a recommendation regarding adoption of The Covenant for the Anglican Communion to the General Synod of 2013.” However, in its defence, it could be argued that it would be premature to do so because the period of consultation and study is incomplete. A few dioceses in Canada have undertaken extensive studies of the proposed Covenant in the last three years, but others have presumably been waiting (in vain, as it turned out) for the theological analysis before undertaking their own study. After all, if you're going to do a study, and you've been told that there will be important background material forthcoming, it makes sense to wait for that material. You can't fault dioceses that have been waiting for the background material for not getting on with the study process. Especially when there's evidence that even CoGS hasn't given the Covenant much study. That said, there are no doubt some dioceses across Canada where there simply isn't a critical mass of interest or energy to study the Covenant document. And now that its future and status are in serious question, interest is waning. It would be nice if some credible body were to make a clear declaration as to whether it's worth flogging the horse any more.

The second way of reading CoGS's motion is to see it as a delaying tactic. Perhaps CoGS is suggesting subliminally that General Synod not take any action just now, anticipating a declaration that the horse is dead. Wait a few years, monitor the situation, and then see if there's anything that needs doing.

The third interpretation is that CoGS is suggesting to the dioceses that haven't yet taken the opportunity to study the proposed Covenant that they do so in the next three years or forever hold their collective peace. Maybe. But the problem is that CoGS is not apparently calling for the theological work that was left undone to be done in the next three years. That being the case, the dioceses will still not be in a position to do a thorough study in the next three years because the necessary background material still won't be available. And energy is definitely waning out in the provinces. We have other things to do than engage in a study process that might (and probably will) prove to be entirely superfluous.

It will be interesting to see what General Synod will do with the resolution in July, and what amendments (if any) are introduced.

In the meantime, we continue to watch for the puff of white smoke above Lambeth Palace that will indicate the burning of the Covenant, and the declaration from the balcony: Non habemus pactum.

Theological Analysis?

Two and a half years ago, at its triennial meeting, the General Synod of the Anglican Church of Canada adopted Resolution A137 calling, in large part, for consultation on the proposed Anglican Covenant by the Council of General Synod (COGS) with dioceses. In order to facilitate the consultation, the resolution requested three things: a Study Guide, and, to support the study process, a Legal analysis of the Covenant and a Theological analysis of the Covenant. The latter two were to discuss the legal/canonical and theological/ecclesiological implications of adopting or not adopting the Covenant. At the end of the consultation process, COGS is to make a recommendation with respect to adoption of the Anglican Covenant to the next General Synod meeting, in 2013.

A year later, in June 2011, the Study Guide was released. At the time, in commending the study guide, I suggested that the two analysis documents would be useful background before actually embarking on a full study of the Covenant. For without expert analysis of the legal and theological meaning and implications of the Covenant, any study would be incomplete.

Within days of the Study Guide, the legal analysis was released. This very thorough study of the Covenant raised a number of serious concerns including the lack of definition of key terms which was so serious that it would be impossible to know what one was agreeing to in adopting the Covenant. Equally serious is the violation of natural justice (procedural fairness) in the dispute-settling mechanism of section 4.2. In my comments on the legal analysis, I said that I was looking forward eagerly to the theological analysis in order to have a complete picture of the proposed Covenant. As I said at the time, “the legal analysis has established a very high standard.”

And so we waited.

Then three weeks ago, published highlights from the Council of General Synod's meeting indicated that COGS had received the long-awaited theological study. I happened to be on vacation at the time, so when I returned I looked for the study. I thought it might have been posted on the Anglican Church of Canada website with the Study Guide and Legal study. But it wasn't. So I asked the General Synod office for a copy and received one by e-mail within a few minutes of my request.

It wasn't worth the wait. To say that I was disappointed is an understatement.

The report begins by saying, perhaps by way of excuse, that the anonymous group of authors “found it impossible to achieve consensus on what [the implications of adoption or non-adoption] might be.” They go on to say that “this is not a matter of interpreting the document itself differently, but rather due to the divergent perceptions of the context in which the text of the Covenant came to exist and is now being read.”

So, if I understand correctly, the committee had no trouble interpreting the text of the Covenant, and in fact agreed on that interpretation. But they couldn't agree on what it means due to “divergent contexts”. Huh?

So what does the Covenant mean, divorced from context? The committee doesn't bother to say. In fact, the report is very thin on analysis. They don’t seem to engage with the text of the Covenant, nor is there much reference to theology broadly or ecclesiology narrowly. I would have hoped that there would be some articulation of what Anglican ecclesiology is and some discussion of the extent to which the Covenant is congruent with that ecclesiology. For example, they don’t engage at all with the question of how having a dispute-settling mechanism in an interprovincial treaty impinges on our ecclesiological assumptions of autonomous Provinces governed by bishops-in-synods. Nor do they engage with the theological meaning of, say, section 1.1’s definition of the faith, which I have characterised as elastic, or the gloss on the Marks of Mission in section 2.2. Nor again do they touch on the traditional use of Hooker’s schema of Scripture, Tradition and Reason in our theologizing, or why the Covenant seems to leave out Reason. I would also have looked for some engagement with the descriptions of the Instruments of Communion in section 3.1.

In the last paragraph, the report suggests that “sections 1-3 ... articulate some of the principles of contemporary Anglicanism,” though leaving us in the dark exactly how these sections do so. But in fact this suggests a very superficial reading of the Covenant text. Sections 1.1, 2.1 and 3.1 do attempt to set out some basic principles in outline of what it means to be an Anglican Christian, though not at any depth of theological or ecclesiological analysis. But sections 1.2, 2.2 and 3.2 contain some specific commitments, which go beyond articulating principles of contemporary Anglicanism. And, as I have suggested before, there is a problem in section 1.1 with suggesting that the “historic formularies” of the Church of England can simply be transported into our modern context and assumed thus to be “contemporary.” At the very least we would need some discussion on how, exactly, these historic formularies can be received and used authentically in our own context. For the Anglican Communion of the 21st century is not the Church of England of the 16th and 17th centuries.

My overall impression is that they have not engaged with the question they were asked, having to do with the theological and ecclesiological implications of adopting or not adopting the Covenant. Instead, they have given a brief and superficial political analysis that seems to come down to a suggestion that how one reads the Covenant will depend on whether one likes it or dislikes it, and that this will influence how one might vote on it, as well as one’s interpretation of the implications of the vote.

If I were using this document to help come to an informed decision on how to vote at General Synod, I would find myself no further ahead.

The bottom line seems to be that after a two and a half year wait for a serious theological analysis of the Anglican Covenant, in order to come to some kind of informed decision as to its adoption, we have been presented with a slap-dash all-nighter reflecting the most superficial reading of the Covenant, virtually no engagement with or quotation of the actual text, and nothing that looks like theology to me in the whole document. We really do have some theologians in the Anglican Church of Canada, but you'd never guess that from this document. No wonder the authors left their names off it.

So, we are left with six months before the General Synod meets. We have a very fine study guide from the Canadian Church (which was produced in time to allow it actually to be used), and we have an equally fine legal analysis (also provided with plenty of lead time). Theological analysis? Not so much. But we can only work with what we have and what we have suggests, albeit without stating it in those terms, that we shouldn't touch the Covenant with a barge pole.

General Synod will meet in July, presumably to make a decision on the proposed Covenant, without the benefit of the theological analysis it asked for. But the legal analysis should be enough to decide that the only rational vote on the Covenant will be “no.”

Effects of not adopting the Covenant

The Canadian Church's Council of General Synod (CoGS) has said that a “key message” that it wants to send to the next meeting of the Anglican Consultative Council (ACC) is that it doesn't yet understand what the “relational consequences” would be for a Church that does not adopt the proposed Anglican Covenant.

With all due respect to CoGS, on which I have served, it seems to me that the real key message here is that the members of CoGS haven't adequately studied the proposed Covenant or the report that CoGS received a year ago from the Governance Working Group on the legal and Constitutional ramifications of the proposed Covenant.

Where to begin?

For starters, “relational consequences”, though not clearly defined, apply only to Churches that have adopted the proposed Covenant, and that only at the end of a process of dispute resolution. Relational consequences have been depicted by opponents as a punishment, and by supporters of the Covenant as nothing more than the natural outcome of a Church persisting in doing something that it has been told is “not compatible with the Covenant.” Rather like a ticket is nothing more than the natural outcome of driving over the speed limit.

So whatever relational consequences are, they cannot apply to a Church that does not adopt the proposed Covenant.

The Governance Working Group said as much in its report to CoGS, which I would suggest the members re-read to refresh their collective memory.

There might, I suppose, be some political consequences in rejecting the proposed Covenant, but that's not the same as relational consequences. And it's hard to see what political consequences would ensue, given that the Church of England has already decided that it doesn't want to sign up to the Covenant. And Ireland, contrary to what the Anglican Journal reports was stated by the Anglican Communion Working Group, has waffled on its support for the Covenant. It deliberately did not adopt the Covenant, but rather “subscribed” to it. Whatever that means.

Personally, I think the key message to the ACC should be that the proposed Covenant was a well-intentioned attempt to deal with the tensions in the Anglican Communion, but it's dead in the water and it's time to move on to something better.

And CoGS needs to do its homework.

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.

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.

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.