21 December 2010

Natural Justice and the Anglican Covenant - Part 2

Does the proposed Anglican Covenant satisfy the standards of Natural Justice, or the Duty to be Fair? We have already seen that, from the perspective of the first principle of the Duty to be Fair, “Hear the other side,” the vagueness of the process for settling disputes (section 4.2) (“the process”) combined with the high degree of discretionary power given to the Standing Committee raises some serious concerns about whether the process will be demonstrably fair. If there were a mechanism to propose changes to the proposed Covenant, I would suggest adding a clause to the procedure that might say something like, “the Standing Committee and the Instruments of Communion shall respect the principles of Natural Justice when conducting the process in this section.” Such a clause might help address the concerns that I previously raised.

Now we turn to the second principle of fairness: nemo judex in sua causa debet esse (“No one must be the judge in his own cause”) - the rule against bias.

Again, I am grateful to David Phillip Jones, QC and Anne S de Villars, QC, Principles of Administrative Law, 5th edition (Toronto: Carswell, 2009) for the principles of the Duty to be Fair. (Page numbers below refer to that book.) Again, what follows is entirely my responsibility and any deficiencies are mine.

As with the duty to take all relevant (and no irrelevant) information into account in making decisions, it seems intuitively obvious that no-one with a known bias should be involved in making a decision that affects someone’s rights or privileges. That would obviously include someone judging his own case, whether he is the defendant or the complainant.

In the proposed Covenant we find only one stated restriction on who may participate in the process: “participation in the decision making of the Standing Committee or of the Instruments of Communion in respect to section 4.2 shall be limited to those members of the Instruments of Communion who are representatives of those churches who have adopted the Covenant, or who are still in the process of adoption.” (s. 4.2.8) (And what, exactly, does “still in the process of adoption” mean here? Does that include all the Churches of the Anglican Communion that have not yet voted not to adopt the Covenant?)

It would seem obvious, but it is not stated, that the representative either of a Church that has “raised a question” pursuant to s. 4.2.3, or of a Church about which a question has been raised, should be excluded from participating in the decision-making processes. They should certainly be heard, but they should not be making decisions. But what about an Instrument of Communion that raises a question? Is it proper for that Instrument or its members to be making decisions about the question that it has raised? Would that not be the same as being the judge of its own cause? If so, we have a problem, and this time we can’t easily solve the problem by slipping in a clause about respecting Natural Justice! Consider, for example, what happens if the Lambeth Conference raises a question. That would mean that the Conference itself, all the bishops, including the primates and hence the Primates’ Meeting, and including the Archbishop of Canterbury in all of his roles, should be excluded from the process. That means we are left with part of the Anglican Consultative Council and less than half the Standing Committee to do the job. The process would be either intrinsically unfair or impossible.

In effect, then, the only solution would be to bar the Instruments of Communion from raising questions at all, for there is a similar difficulty if any of them raises a question. But even that would not solve all the problems of potential bias in the process. Jones and de Villars list five types of bias which are included in the rule against bias (pp. 403ff). The first four are personal and the fifth is structural. They are:
  1. financial interest in the outcome of the dispute;
  2. relationships with persons involved in the dispute;
  3. outside knowledge of or involvement with the matter in dispute;
  4. inappropriate comments or behaviour;
  5. institutional bias.
In law, it is generally not required to demonstrate an actual bias to prove that a decision is unfair, one must only demonstrate a “reasonable apprehension of bias,” which means that the test for bias is quite strict. So with that in mind, let us examine these five type of bias in light of the proposed Covenant’s process for resolving disputes.

1) Financial Interest in the Outcome of the Dispute

The first type of bias is probably the least likely to occur in the process, though it is not impossible. If there were some sort of money trail to be followed, some financial connection between a Standing Committee member, or his or her Church, and a position or point of view in the question at hand, it would create the sort of financial interest that could lead to bias, and require the exclusion of a Church’s representatives from the process.

2) Relationship with Persons Involved in the Dispute

It is the nature of the Anglican Communion and the bodies that would be involved in the process that there would be some relationships among the various players. At a minimum, the primate of the Church about which a question has been raised and the primate of a Church raising a question would know the other primates from the Primates’ Meeting and perhaps from other contexts. But in order for a bias to exist the relationship in question would have to be so close as to raise concerns about impartiality. It seem unlikely that there would be close family members or spouses, for example, involved in different roles in the process. But one area to watch for potential bias would be a case in which the decision maker is an employer of someone involved in the process. This is most likely to occur with respect to staff acting for or advising the Standing Committee or Instruments of Communion. And again, we are speaking here of the test of a reasonable apprehension of bias, not alleging any actual bias.

3) Outside Knowledge of or Involvement with the Matter in Dispute

It is the nature of the Standing Committee members that they will have extensive knowledge of the Anglican Communion, its history, faith and practices. This does not necessarily create the apprehension of bias, in my view. Nevertheless, it is important for decision makers to approach a question with an open mind, and in general this test for bias raises the concern that someone with extensive knowledge of a subject matter may find it difficult to avoid being predisposed to a certain decision. Fairness dictates that the decision makers listen to the actual case at hand, and not simply rely on what they think they already know.

4) Inappropriate Comments or Behaviour

Recent or ongoing participation in, say, an advocacy group with a specific opinion or position related to the matter in question would create the impression of bias. Strong public remarks on the subject matter by a decision maker himself or herself would similarly create the impression of bias. Impartiality is required for fairness; clear partiality renders a decision intrinsically unfair.

All of the foregoing forms of bias are both possible in the membership of the Standing Committee and the Instruments of Communion, and avoidable in the process if persons whose activities or comments or associations might create the apprehension of bias are excluded from the process. Unfortunately, in the absence of any guidance in the proposed Covenant, there is no assurance that any effort will be made to address possible sources of the apprehension of bias. And in the absence of any opportunity to amend the proposed Covenant no such assurances can now be included in it.

It is important to note, as well, that the apprehension of bias may arise, not only with respect to decision makers themselves, but also with respect to staff who assist the decision makers. As Jones and de Villars put it, “if a subordinate who makes a recommendation to the ultimate decision-maker plays an important role in the decision-making process, a finding of bias on the part of the subordinate can invalidate the decision even if there is no suggestion of bias on the part of the decision-maker himself or herself.” (p. 397) In our case, this means that staff who serve the Standing Committee and Instruments of Communion would need to be scrupulous in their impartiality. Similarly, national staff of the Churches who participate in a meaningful way in advising primates who are on the Standing Committee would need to be free of a reasonable apprehension of bias.

As with the question of the duty to hear the other side, questions of the possibility of personal bias can be addressed by fair procedure. In both cases, there is no requirement in the proposed Covenant that fair procedure be used, but there is nothing stopping fair procedure from being followed, provided that those charged with making decisions are sufficiently aware of the need to do so. But, again, in the absence of any guidance, much depends on the judicious and demonstrably fair use of discretion.

And so, we turn to the final consideration with respect to the rule against bias.

5) Institutional Bias

“Institutional bias cases concern situations in which a reasonable apprehension of bias is alleged to be generated by the structure or operation of a decision-making body, rather than the words or actions of an individual decision-maker.” (Jones and de Villars, p. 421) In other words, the concern is whether the system itself is designed or operates in such a way as to promote decisions which are demonstrably fair and impartial. A key concern in this area has to do with overlapping roles in the decision-making process. It is obvious, for example, that no single individual should play the various roles of prosecutor, judge, jury and executioner. Nor should the same individual be both defence attorney and judge. Either case would be an obvious recipe for bias. But does the very design of the tribunal prevent such overlapping of roles? In one case cited by Jones and de Villars, they note “that there was no evidence that a director played more than one role in relation to the case of the bar itself. The possibility that a director might play more than one role was held to be sufficient to invalidate the proceedings.” (p. 427, emphasis in original)

Here we have a serious problem. The process outlined in section 4.2 of the proposed Covenant is rife with overlapping roles. The lynchpin of the process is the role of the Standing Committee, which is empowered both to determine whether an action or proposed action is or would be “incompatible with the Covenant” (s. 4.2.6) and then to recommend “relational consequences” to the Instruments of Communion and/or the Churches of the Communion. (s. 4.2.7) In its deliberations, the Standing Committee may solicit or receive advice “from such bodies as it deems appropriate” and in certain (unspecified) cases it “shall refer the question to both the Anglican Consultative Council and the Primates’ Meeting for advice.” (s. 4.2.4)

But we must recall the make-up of the Standing Committee. It consists of 15 persons, seven of whom are appointed by and from the Anglican Consultative Council, and five by and from the Primates’ Meeting. In addition, the chair and vice-chair of the Anglican Consultative Council are ex-officio members of the Standing Committee. Rounding out the number is the President of the Standing Committee, who is the Archbishop of Canterbury.

So it seems that the Standing Committee, which consists of members of the Anglican Consultative Council and the Primates’ Meeting, may (and in some cases shall) consult the Anglican Consultative Council and the Primates’ Meeting for advice on reaching a decision, and then, having reached a decision, may recommend action to the Anglican Consultative Council and the Primates’ Meeting. A process in which a body consults itself and makes recommendations to itself does not exactly suggest independence of decision making!

And if that’s not bad enough, consider the role of the Archbishop of Canterbury, who has no less than six different, overlapping roles. He is:
  1. the Primate of a Church;
  2. an Instrument of Communion;
  3. convenor of the Primates’ Meeting (another Instrument of Communion);
  4. convenor of the Lambeth Conference (a third Instrument of Communion);
  5. president of the Anglican Consultative Council (the fourth Instrument of Communion);
  6. president of the Standing Committee (which might consult and advise the above five bodies!)
Just as bad is the possibility that the same staff members who support the Standing Committee may also play roles in supporting and possibly advising various Instruments of Communion. Overlapping roles of staff are just as hazardous to institutional bias as overlapping roles of decision makers.

In fact, the process of section 4.2 has “institutional bias” written all over it. Four years ago, I wrote that “if some form of dispute-settling mechanism is to be included in a Covenant, care will have to be taken not to undermine the roles of the Instruments of Unity by involving them too closely in the mechanism. The Instruments of Unity must remain free to convene and to gather, and thus continue to be forces that draw the Communion together. Perhaps this can best be accomplished by attending to the usual question of separation of powers in governance, and establishing a fully independent body rather than the Council of Advice as currently envisioned..” Having an independent body to play the role of decision maker would introduce extra cost into the system, but it would also promote institutional fairness.

Grave questions of fairness arise with respect to the need to observe the duty to hear the other side, that is, to ensure that all relevant and no irrelevant information is taken into consideration in the decision making process. The vagueness of the proposed Anglican Covenant’s process for dispute resolution and the unfettered and unguided discretion of the Standing Committee in conducting the process underline the gravity of these questions. Nevertheless, these concerns are not fatal to fairness if the discretion of the Standing Committee is exercised judiciously and fairly.

Similarly, there are possibilities of personal bias entering into the process. But again, in my view, these possibilities are not necessarily fatal to fairness if the Standing Committee in exercising its discretion attends to the need to declare any potential causes for the apprehension of bias and exclude any persons so implicated from the process.

But the question of institutional bias cannot be addressed by judicious use of discretion. There is no remedy for the multiple overlapping roles of the members of the Standing Committee. In my view, the use of the Standing Committee as decision maker in the process is fatal to the Duty to be Fair. The proposed Anglican Covenant does not meet the standards of Natural Justice. It is intrinsically incapable of rendering decisions which are demonstrably fair.

18 December 2010

Natural Justice and the Anglican Covenant - Part 1

Does the proposed Anglican Covenant satisfy the standards of Natural Justice? In other words, are the procedures for dispute settling in section 4 demonstrably fair?

The principles of Natural Justice are considered to be so obvious as to require no specific inclusion in the law, and are well established in the common law. Allied to Natural Justice is the concept of the Duty to be Fair. The distinction between the two generally has to do with the type of governing body involved in a decision-making process. Natural Justice applies to judicial and quasi-judicial bodies, whilst the Duty to be Fair applies to administrative and executive bodies in government. In Canadian law the distinction is increasingly blurred, and for good reason: the underlying principles for both Natural Justice and the Duty to be Fair are the same.

I am grateful to David Phillip Jones, QC and Anne S de Villars, QC, for their book, Principles of Administrative Law, 5th edition (Toronto: Carswell, 2009) from which I have drawn the principles of the Duty to be Fair. (Page numbers below refer to that book.) What follows is entirely my own work, and any deficiencies in it are my own.

On judicial review, the question with respect to the Duty to be Fair becomes whether a given decision by an executive, administrative, judicial or quasi-judicial body is fundamentally fair. And we might ask the same question of the Anglican Covenant. Is it designed in such a way as to provide for decisions which are likely to be accepted as fair?

First, it might be asked why I am pursuing this line of enquiry. Can we not all agree that the Standing Committee and others involved in the procedures of section 4 will act with good faith? There is no need to allege bad faith, and in fact I am quite happy to assume that all the actors in the proposed Covenant process will endeavour to act in good faith. But, as Jones and de Villars put it, “the duty to be fair is procedural in nature and means more than merely good faith.” (p. 235) That is, a decision rendered in good faith by a flawed procedure, even a decision which is substantively good, may be declared void upon judicial review if the duty to be fair is breached. It’s not just a matter of what is decided, but how the decision is reached and whether the procedure is fundamentally and demonstrably fair.

The enquiry concerning fairness is important for three reasons:
  1. fairness is an important consideration in Christian faith and the canonical tradition, allied with questions of justice (hence “Natural Justice”);
  2. a decision felt to be unfair will be rejected and will only increase division in the Anglican Communion, counter to the stated purpose of the proposed Covenant;
  3. aside from being the right thing to do, protecting fairness would lend credibility to the proposed Covenant’s procedures.
As Jones and de Villars put it, “Justice must not only be done but must manifestly and undoubtedly be seen to be done. It increases the confidence of the parties and the public in the decision-making process. It also produces better decisions.” (p. 454)

Previously I have commented on the vagueness of the dispute-settling process in the proposed Covenant. This vagueness, and the high level of discretion given to the Standing Committee, raise the question of whether the process is workable at all. Jones and de Villars raise the issue of legislative vagueness as a matter of fundamental substantive justice: “laws cannot be so vague that a reasonable citizen would not know whether a proposed action is legal or not, or so vague that it creates unlimited discretion.” (p. 247) Here we are concerned with procedural justice.

One of the difficulties in the proposed Covenant’s procedures is that there is no mechanism for an appeal of a decision. The Standing Committee, with virtually unlimited discretion, is empowered to declare whether an action or proposed action is or would be “incompatible with the Covenant.” (s. 4.2.6) On this basis, the Standing Committee may then recommend “relational consequences” to the Instruments of Communion and the Covenanting Churches to implement. (s. 4.2.7) There is no process for review of the decision or of the recommendation. (And it is doubtful whether there is any court that would entertain an application for judicial review.) Discretion is not necessarily fatal to fairness, as discretion can be exercised well just as easily as it can be used badly. But the question arises whether we can be confident, beyond the assumption of good faith, that the discretion of the Standing Committee will be exercised fairly? The question is doubly important because of the lack of an avenue of appeal. The Supreme Court of Canada has raised just this point: “Greater procedural protections are required ... when there is no appeal procedure, or the decision is determinative of the issue and further requests cannot be submitted.” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (S.C.C.)  L’Heureux-DubĂ© J at para 24. Quoted at p. 256 of Jones and de Villars)

The Duty to be Fair is grounded on two fundamental principles. First is the legal maxim “audi alteram partem” - “hear the other side.” This sounds quite obvious, but its implementation is not always so obvious. Procedurally, the requirement to hear the other side needs to be implemented with a series of processes, including proper notice of a hearing, disclosure of the complaint, opportunity to present a defence and so on. Again, quoting Jones and de Villars, persons (and, in our case, Churches) “are entitled to have decisions affecting their rights, interests or privileges made using a fair, impartial and open process....” (p. 257) This affects all stages of the process from investigation of the initial complaint or question, through to the final decision.

Fairness dictates that once a question has been raised with respect to an action by a Church, the body receiving the question will notify that Church of the question and invite a response. The Church would need to be notified of all meetings of the Standing Committee and given the right to be present when the Standing Committee is receiving evidence. Any written submissions to the Standing Committee would need to be sent to the Church in a timely manner. The Church would need to have prior notice, not just of any meeting of the Standing Committee, but also of the agenda and, at the stage of recommending “relational consequences” notice of what consequences are being contemplated. (No surprises, no “gotchas”.) The Church would need to have the right to make submissions, both written and orally as appropriate, concerning the action it has taken and the reasons behind that action, and to respond to any other submissions received by the Standing Committee. (This is not an exhaustive list).

Again, the duty to hear the other side seems so obvious that it is unlikely to be breached. Surely the Standing Committee will do all in its power to ensure that submissions on the question at hand are widely solicited and carefully reviewed, especially submissions from the Church in question. And surely I should not be suggesting that the Standing Committee is bound by the rules of a court of law, for it is not such a court. Agreed! But, whether we conceive of the process as quasi-judicial or administrative in nature, it is a process by which a decision may be reached which affects the rights and privileges of a Church, up to and including its membership in the Anglican Communion. Thus, if we apply the model of an administrative tribunal to the Standing Committee, then the question of the great discretion of the Standing Committee in its deliberations is of concern. With all the good will in the world, that discretion creates doubts about the potential fairness of the Standing Committee in respecting the duty to hear the other side. The Standing Committee is empowered to consult any body “it deems appropriate to determine a view on the nature of the matter at question and those relational consequences which may result.” (s. 4.2.4) There are no guidelines in the proposed Covenant regarding how the Standing Committee is to exercise this discretion and, equally worrisome, it is highly doubtful that the Standing Committee will have a member who is trained in procedural fairness or even reasonably aware of the issue.

And there is an issue in the duty to hear the other side that is not as obvious as it might seem. Jones and de Villars state that “[t]he fact that the strict traditional rules of evidence do not apply to administrative tribunals does not mean that tribunals have complete discretion to determine what evidence they will hear. Firstly, the tribunal must not abuse its discretion by basing its decision on insufficient or no evidence, nor on irrelevant considerations. As in other areas of the audi alteram partem rule, the tribunal must exercise its discretion to hear evidence in a manner consistent with procedural fairness.” (p. 305. my emphasis.)

When a question is being considered by the Standing Committee under the Covenant process, it is likely that there will be a large number of submissions, comments and so on from a huge variety of sources. Fairness dictates that the Standing Committee will consider, and the Church in question will be permitted to respond to, all relevant submissions. Again, obvious. But it also requires that submissions that are not relevant will not be considered, which means that there must be a fair determination of what submissions are in fact relevant. This comes down, in my view, to two fundamental questions: who is to be permitted to make a submission to the Standing Committee, and what content will be permissible in those submissions.

On the first question, we need to establish exactly where the limits are in the Standing Committee’s discretion to consult any body it chooses with respect to a question under consideration. Should it be limited to official bodies within the Anglican Communion, such as Churches, Instruments of Communion, and official committees and commissions? Or should unofficial groups in or related to the Anglican Communion be heard? What about ex-Anglicans, persons who have separated themselves from the Communion (some of whom are certainly quite vociferous about Communion affairs, including the current debate about the Covenant)? Should ecumenical partners be permitted to make submissions? Should submissions be received only if solicited by the Standing Committee or should unsolicited submissions be accepted? These are very thorny questions. In my view, the farther away one gets from official Anglican sources, the greater the danger of real or perceived unfairness in the procedure. And the question of solicited versus unsolicited submissions can work both ways. On the one hand, the Standing Committee risks being buried in irrelevant considerations if it accepts unsolicited submissions. On the other hand, an unsolicited submission might contain a relevant consideration so important that it determines the question.

With respect to content, this consideration may help in determining whether to accept any given unsolicited submission. But again, great care will have to be taken to distinguish between what is truly relevant and what seems relevant but is in fact peripheral to the question. For example, there is the question of context. The Preamble to the proposed Covenant states that the purpose of the Covenant is “to proclaim more effectively in our different contexts the grace of God revealed in the gospel.” (my emphasis) If all theology is necessarily contextual, would evidence about the context of a Church raising a question be relevant when examining the actions of another Church in its context? In other words, would it be fair to judge one Church from the perspective of another Church’s context? The proposal for a Covenant seems to suggest that it would be fair. I’m not so sure. And again, in the absence of any guidelines a great deal of weight will rest on the capacity of the Standing Committee to exercise its discretion in a manner which is patently and demonstrably fair.

Audi alteram partem! The discretion of the Standing Committee to decide what evidence it will consider in determining a question is unfettered and unguided by the proposed Covenant. This is not necessarily fatal to the Duty to be Fair, provided that discretion is exercised in a manner which demonstrably respects the rule requiring that the other side be heard in all its facets. The vagueness of the proposed Covenant’s procedure, combined with the unfettered discretion of the Standing Committee, is a recipe for arbitrariness. The proposed Covenant would have greater credibility if it contained some reasonable guarantee of fairness.

Next: In Part 2, I will consider the second principle of the Duty to be Fair: nemo judex in sua causa debet esse - the rule against bias.

09 December 2010

Raising a Question: Dispute Settlement in the Covenant

The proposed Anglican Covenant exists primarily to create a framework for the settling of disputes in the Anglican Communion. Arising as it does in the context of a protracted dispute over local decisions about the inclusion of sexual minorities in the sacramental life of the Church, and of border-crossing interventions from other Churches, it is no surprise that the proposed Covenant reflects this conflict. So how does it propose to deal with conflict?

Section 4.2, “The Maintenance of the Covenant and Dispute Resolution” sets out the mechanism by which disputes would be regulated in the future. The euphemism for lodging a complaint is “Raising a Question.” (4.2.3)

A question may be raised concerning either the meaning of the proposed Covenant, “or about the compatibility of an action by a covenanting Church with the Covenant.” This is the last we hear about questions concerning the meaning of the proposed Covenant, so it is clear that such questions are really not the focus of the process. So let’s focus on the second class of questions, compatibility with the Covenant.

The first thing to notice is that the proposal specifies clearly who may raise a question: a Church itself, another covenanting Church, or an Instrument of Communion.

Presumably when a Church raises a question, it is likely to be a pre-emptive reference to determine whether a course of action it proposes will bring down the wrath of the Communion. In Canada our Parliament periodically refers proposed legislation to the Supreme Court to determine the Court’s opinion as to whether the legislation will be constitutionally valid. So, I assume that the raising of a question by a Church about its own proposal is along similar lines. What’s not clear is the mechanism within the Church for posing the question. Presumably it would be a matter of the particular polity of the Church. In some Provinces, the Primate would possibly have the authority to raise a question. In others, it may require a resolution of the General Synod or equivalent. Some churches might consider giving their highest court the authority and mandate to raise questions, though of course, that would be a change to a canon, which section 4.1.3 assures us is not implied by the adoption of the proposed Covenant.

For an Instrument of Communion to raise a question, there is also no specified mechanism. Again, it might be a matter of the nature of the specific Instrument. The Archbishop of Canterbury could easily just write a letter to raise the question. And the Anglican Consultative Council could adopt a resolution to raise a question. But what of the Primates’ Meeting and the Lambeth Conference? Since they are not legislative bodies, but deliberative bodies, how do they decide to raise a question? A resolution is the obvious answer, but what happens when, as in 2008, the Lambeth Conference is not considering any resolutions? And, anyway, how would the possibility of raising a question appear on the agenda of any of the three collective Instruments of Communion? Presumably, a Church would petition the convenor or president of the relevant Instrument to consider raising a question, but why use a middleman when the Church can raise the question itself?

Finally, another Church can raise a question about the action of one of its Communion partners. Again, one might ask how this would get on the agenda of the other Church. I imagine it is likely to be very similar to the manner in which the current dispute has been conducted, with a dissenting minority within a Church taking an action appealing to another Church to intervene, in this case by raising a question.

But if it’s fairly clear who may raise a question, the phrasing is a bit fuzzy as to how a question is asked, and of whom. Questions don’t arise ex nihilo, they arise from a context and they are asked of someone. In the context, since section 4.2.2 states that the Standing Committee “shall monitor the functioning of the [proposed] Covenant” it would appear that it is the body to send a question to. I know that supporters of the proposed Covenant will think I’m being difficult here, but would it have killed the Design Group to include a phrase like, “in order to raise a question, a Church shall, through its own constitutional and canonical processes, send the question to the Standing Committee of the Anglican Communion”? They could even have supplied the address and a specified form.

(As an aside, this is why the use of the passive voice in Synod resolutions and proposed Covenants should be avoided. It tends to lead to ambiguity. Clarity in these things is always preferable to ambiguity!)

(As a second aside, if there were a reference to some constitutional and canonical processes, that would imply that there were such processes within the constitutions and canons of the covenanting Churches, because, as 4.1.3 tells us, adoption of the Covenant implies no changes to the constitution or canons.)

So, now a question has arisen (note the passive voice) and it has been addressed to the correct person or persons. What next?

Section 4.2.4 tells us that “where a shared mind has not been reached the matter shall be referred to the Standing Committee.” Hold on, here, what’s going on? Didn’t we just send the question to the Standing Committee? So, either my guess was wrong that the Standing Committee is the one to receive questions, in which case I don’t know who else was supposed to receive it, or the Standing Committee is going to refer questions to itself. (And note the passive voice again! “shall be referred” by whom “to the Standing Committee”?) But there’s a bigger problem: what is the process for attempting to reach a shared mind? shared by whom? where’s the process for determining it? what are the criteria?

Already my head is spinning and we’ve only just managed to lodge a complaint, er, raise a question!

At least now we know that the Standing Committee is in charge of the question and its process. So what next? Well, first “the Standing Committee shall make every effort to facilitate agreement” presumably by whatever process it chooses, given that no process is mentioned. Question is, wasn’t there already some kind of process to attempt to reach a shared mind? What’s the difference between that and facilitating agreement? At least the Standing Committee isn’t on its own here, for it “may take advice from such bodies as it deems appropriate.” It’s not clear, of course, whether such advice should be solicited by the Standing Committee, or might just arise, ex nihilo, from some body or other, whether celestial or terrestrial. In the latter case, it seems the Standing Committee can determine whether to listen to the advice or not. Not that there are any criteria to guide the Standing Committee with respect to the appropriateness of the body offering the advice. (Is it just me, or does the Standing Committee have a huge amount of discretionary power?)

In addition to taking advice from appropriate bodies, “where appropriate, the Standing Committee shall refer the question to both the Anglican Consultative Council and the Primates’ Meeting for advice.” (4.2.4) So were neither the Anglican Consultative Council nor the Primates’ Meeting appropriate bodies for consulting in the previous sentence, except “where appropriate” in this sentence? This is beyond confusing. And unfortunately, the proposed Covenant doesn’t bother (again) to give criteria for determining where consulting these two bodies is appropriate. Which is a problem, given that it is mandatory (“shall”), albeit conditional. Or is this sentence meant to imply that the Standing Committee shall not consult either the Primates’ Meeting or the Anglican Consultative Council without also consulting the other one? (Such an interpretation makes sense, given the fears expressed that the proposed Covenant would turn the Primates’ Meeting into a Curia.) And if that’s what it means, why didn’t the Design Group just say it?

So, while the Standing Committee is trying to figure out, er, is engaged in the process, it “may request a Church to defer a controversial action.” (4.2.5) This suggests either that any action about which a question has arisen is presumed to be “controversial” or that there is some mechanism (what? with what criteria?) by which the Standing Committee may make an interim decision that the action is controversial. Deferring a controversial action is thus apparently an investigative tool. Of course, it’s only a request. The Church doesn’t need to agree to the request and the Standing Committee has no power to compel the Church to defer. We’re all so polite. But, “if a Church declines to defer such action, the Standing Committee may recommend to any Instrument of Communion relational consequences....” So the Church can’t be compelled to comply with the request to defer its action, but if it chooses to exercise its autonomy in carrying on, “relational consequences” may apply.

Next, the Standing Committee “may make a declaration that an action or decision is or would be ‘incompatible with the Covenant’”. (4.2.6) But such a declaration would be made “on the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting.” This raises a couple of questions. First, does the Standing Committee have the power to make such a declaration without the advice of the ACC and the Primates’ Meeting? And if the two bodies disagree, does that also preclude such a judgment? And if the Standing Committee has determined in 4.2.4 that it is not appropriate to consult these two bodies, is it then precluded from determining that an action is or would be “incompatible with the Covenant”? In other words, what, precisely, are the conditions that must obtain in order for the Standing Committee to declare definitively that an action is “incompatible with the Covenant”? It would be helpful if the proposed Covenant actually specified these points.

Finally, (4.2.7) “on the basis of the advice received the Standing Committee shall make recommendations as to the relational consequences which flow from an action incompatible with the Covenant.” It’s interesting that here the Standing Committee is again required to make recommendations. (“shall”, not “may”) But more interesting is the question, “which advice, precisely?” Does this imply that if the Standing Committee has not sought, or not received, any advice that no “relational consequences” will ensue? And which bodies may give advice that imply that relational consequences may be recommended? The ACC? The Primates? Both? Some other body determined (randomly? capriciously?) to be appropriate? GAFCON?

Obviously, if you’re still with me, there are a number of holes in the process here, and I have a series of other questions to raise with respect to the process, but this blog post has gone on long enough. I will address further issues, including other elements that have been ignored or omitted, in my next post. Watch this space.

It seems to me that the first question that ought to arise with respect to the meaning of the Covenant (4.2.3) is what on earth is the process for raising questions, and how exactly are they to be addressed?

06 December 2010

Defining Relational Consequences

If, as I have suggested, the rules in the Anglican Covenant are unclear, and hence a recipe for arbitrariness, what of the sanctions for violation of the rules? Are they any clearer?

The Covenant speaks in three places of “relational consequences” which may be applied with respect to a “controversial action.”

Section 4.2.4 gives the Standing Committee the power to “determine a view on the matter at question and those relational consequences which may result.” In doing so, the Standing Committee “may take advice from such bodies as it deems appropriate.” (There’s more to be said on process in a later post.)

Section 4.2.5 states that “if a Church declines to defer [a controversial] 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.”

Finally, when an action by a Church has been deemed incompatible with the Covenant, section 4.2.7 empowers the Standing Committee to “make recommendations as to relational consequences which flow from” that action. This is fleshed out by the statement that “these recommendations may be addressed to the Churches of the Anglican Communion or to the Instruments of the Communion and address the extent to which the decision of any covenanting Church impairs or limits the communion between that Church and the other Churches of the Communion, and the practical consequences of such impairment or limitation.”

But what, precisely, is meant by “relational consequences” and “practical consequences?” Father Jake helpfully points to a list of seventeen “relational consequences” listed in A Lambeth Commentary. You can read them for yourself at page 25 of the document. The list is helpful in understanding what the Covenant Design Group had in mind in using the phrase “relational consequences” but it’s important to bear two things in mind. First, A Lambeth Commentary is a response to reflections and questions raised by the bishops at the 2008 Lambeth Conference concerning the St Andrew’s Draft Covenant. So it is not commenting on the final draft which is now on the table. That said, the list does provide some useful insight. The second point to be aware of is that the list in A Lambeth Commentary is not included in the Covenant itself. So if we are to interpret the phrase “relational consequences” by a close reading of the Covenant text itself, the list becomes superfluous, even where there are overlaps with the final text.

So, turning again to the Covenant text, it is clear that not all of the seventeen consequences considered in A Lambeth Commentary made the final cut. Consequences are centred on two areas, and at two stages of the dispute-settling process. First, in section 4.2.5, “relational consequences” may apparently be used as an interim response to a Church that continues to do the thing at question during the adjudication process. In this case, the consequences have to do with participation in the Instruments of Communion, which may be limited or suspended. So, to clarify, the Standing Committee might recommend one of three things:
  1. removal of voting privileges (retaining the right otherwise to speak and participate in meetings);
  2. removal of voting and speaking privileges (or downgrading to observer status);
  3. removal of attendance privileges (non-invitation).
Three things are important to note here. First, at this stage in the process, these consequences are provisional. That is, it is possible that the Standing Committee will ultimately determine that the “controversial action” is nevertheless not incompatible with the Covenant, and presumably the privileges that have been withdrawn will be restored (though there is no mention of this possibility in the process!) Second, the named consequences are recommendations, and any Instrument of Communion could presumably decline to implement them (though that possibility doesn’t seem to be contemplated by the Covenant, either.) Third, voting privileges are most significant in the Anglican Consultative Council, which would be constitutionally bound to make its own decision with respect to implementation of any recommendations, whilst participation in the Lambeth Conference and Primates’ Meeting is at the invitation of the Archbishop of Canterbury. Obviously neither speaking nor voting privileges are relevant when it comes to “participation in” the Archbishop of Canterbury as an Instrument of Communion.

Bearing that in mind, it does seem rather harsh to implement a sanction against a Church before it has even been determined that the Church has done anything wrong.

At the second stage, once an action has been deemed “incompatible with the Covenant,” the above-mentioned sanctions appear to be contemplated with respect to participation in, or expulsion from, the Instruments of Communion. In addition, section 4.2.7 suggests a declaration of impaired, limited or broken communion between the offending Church and the rest of the Churches of the Communion. The illusion of Provincial autonomy is retained, as the various members of the Communion explicitly retains the right to “determine whether or not to accept [the] recommendations” of impairment of communion.

But what would happen if the Standing Committee recommended breaking communion with one Church and another Church decided not to break communion? Would that refusal to break communion itself become a “controversial action?” It would also be interesting to see what would happen if, say, a Church’s bishops were disinvited from the Lambeth Conference, whilst the Anglican Consultative Council chose not to act on a recommended sanction against the same Church’s members of the Council. That would be a significant constitutional crisis, to say the least. Similarly, it’s unclear whether the decision to implement a sanction with respect to either the Primates’ Meeting or the Lambeth Conference could be made by the body itself, or only by the Archbishop of Canterbury. One can imagine a scenario in which the Archbishop chooses not to implement a recommended sanction, particularly provisionally, but the Primates or bishops press the matter at the next meeting.

Impairment of communion is not unfamiliar in the Anglican Communion, for such a relationship already exists with respect to ordination of women. The orders of a female priest from one Province are not recognized in another Province that does not itself ordain women as priests, for example. And the practical consequence is that the priest in question may not perform priestly acts (e.g., preside at the eucharist) in the other Province. Things are more complex when it comes to female bishops, for not only would a female bishop from one Province be unable to perform episcopal acts (ordination or confirmation) in a Province that does not accept female bishops (though she might be able to perform a priestly act if the other Province ordains women priests), but in addition the same episcopal acts performed in her own Province might be held to be null in the other Province. That is, a person who has been confirmed by a female bishop, upon moving to a Province without female bishops might find that she is not held to be validly confirmed, and thus ineligible for any office or privilege that requires confirmation as a prerequisite. Similarly, a priest ordained by a female bishop might find that his orders are not recognized in a Province without female bishops. In any case, impaired communion is an indictment of our inability to get along as autonomous churches in communion.

Breaking of communion has to date only occurred in the Anglican Communion when a faction breaks away and forms its own church. Expulsion of a member Church from the Communion would be a very serious matter, implying a complete expulsion from all participation in the Instruments of Communion, withdrawal of recognition of orders and, at a minimum, a significant change to any collaboration in mission between that Church and other Churches in the Communion. One can only imagine the potential for havoc within the Province in such a case.

On the face of it, “relational consequences” sounds rather like a gentlemanly tut-tutting, but underneath the surface, there is little gentlemanly about sanctioning a Church for doing its best to live out its mission in its own context. If defining the breaches of the rules is a fuzzy matter, at least the sanctions to be meted out are fairly clear, though the process itself leaves a lot to be desired, as I will discuss later.

01 December 2010

Defining Controversial Actions

I’ve been driving for about three decades. During that time I have resided and been licensed to drive in two jurisdictions, and have driven in three countries. I pretty much know what the rules are: drive within the speed limits, stop when encountering a school bus with flashing red lights, and so on. Some of the rules have evolved over time. For example, when I started driving there was no ban on handheld mobile phones. Of course there were no mobile phones. And if I want to drive in another country, it’s not so difficult to find our how their rules might differ from the ones I am familiar with. Which is a good thing, because I generally want to obey traffic rules, and it’s easiest to obey rules I know and understand.

The draft Anglican Covenant provides for a process that might lead to “relational consequences” (about which more in a later post) for a Province which has taken a “controversial action.” The question is, what exactly is a controversial action?

Unfortunately, the Covenant gives no guidance on that question, so we are left to speculate.

Section 4.2.3 states that “when questions arise relating to the meaning of the Covenant, or about the compatibility of an action by a covenanting Church with the Covenant, it is the duty of each covenanting Church to seek to live out the commitments of Section 3.2. Such questions may be raised by a Church itself, another covenanting Church or the Instruments of Communion.” So a controversial action is one about which a question has arisen.

But what might give rise to a question? And what would be the mechanism to raise questions? And to whom should questions be referred?

In the history of Anglicanism there have been a number of questions of controversy, some of which have led to schisms. Questions have arisen about the nature of a cleric’s oath to the sovereign (the non-Juror crisis), about whether slavery ought to be abolished or retained, about liturgical vestments and rituals, about remarriage after divorce, about the ordination of women, about liturgical renewal (in both the 16th and 20th centuries), and about the place of sexual minorities in the Church. This is neither an exhaustive nor a closed list of controversies. There have been others and there will be more in the future, the details of which I cannot predict. Every age, it seems, has its own matters of controversy. What remains unchangeable is the willingness of Anglicans to argue, and sometimes, sadly, to break from the Church.

The trouble with the Covenant is that it is so vague about “controversial actions”, we can only know after the fact that an action taken by a Province - perhaps after years of study, discussion and debate - is a “controversial action” within the terms of the Covenant. For example, a Province could debate the question of remarriage after divorce for many years (76 years in Canada’s case) and then having implemented a change in practice that change could be deemed “controversial.” Part of me wants to say “Duh” because if the change weren’t controversial it wouldn’t have taken 76 years to decide. But it seems that after all that, another Province or an Instrument of Communion could “raise a question” which would lead to a decision about the action’s compatibility with the Covenant. And what would motivate the raising of the question? I suspect in most cases the other Province or the Instrument of Communion would raise the question in response to a petition from a dissident minority within the Province taking the action. The process of raising a question, in other words, would be used as a kind of quasi-judicial review of the action of a Province’s General Synod (or equivalent), initiated by the people who voted “no.”

Trouble is, there is no way for a Province to know in advance precisely what decisions it takes will give rise to petitions or the raising of questions. The chief criterion seems to be that someone disagrees. Imagine being pulled over on the motorway and the police officer saying that, no there are no specified rules, but another driver disagrees with the way you just made a turn.

And then there is the question of the criteria for how a decision would be made regarding whether a given action is compatible with the Covenant or not. If by now you're wondering whether the Covenant itself supplies such criteria, the answer is “no.”

And lest I give the impression that controversial actions can only be taken on the progressive side, consider the recent decision of the Diocese of Uruguay to leave the Province of the Southern Cone because the Province won’t allow the ordination of women.

The Covenant’s assurances of Provincial autonomy have been likened to telling a child that he can decide for himself whether to eat his broccoli or not, but if he doesn’t eat the broccoli he won’t get any pudding. With respect to what the rules are, the Covenant is like putting dinner in front of a child with a vague warning that he must eat properly or risk some unspecified “relational consequences”. And what does “properly” mean? Using the correct utensils (without being told what that means)? Eating the various dishes in a correct (but unspecified) sequence? Correct use of condiments (whatever that might be)? Eating the broccoli? Cleaning the plate? Stopping when full? Some unspecified combination of the above? In the absence of a clear rule, what is the poor child to do?

Let’s assume, for the sake of argument, that the various General Synods act like grown-ups: they try to make responsible decisions based on their best ability to discern what God is calling them to do in their own context, after appropriate study and consultation and prayer. The Covenant says that’s not good enough. It suggests that someone who disagrees with any decision can raise questions, and that these questions will potentially take priority over whatever process the General Synod in question has gone through. Further, the Covenant suggests that people who have not gone through the process of study and consultation and prayer will determine the appropriateness of the outcome without the benefit of the process.

Lack of clarity of what the rules are is a recipe for arbitrariness. It is a denial of the concept of the Rule of Law, the opposite of which is the Rule of Men.