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.

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