ACC Standing Committee: Five Things That Should Be Done Now

The Reverend Canon Professor Christopher Seitz The Reverend Dr. Philip Turner The Reverend Dr. Ephraim Radner Mark McCall, Esq. We have written often about the Anglican Consultative Council and its Standing Committee over the last year. After the chaotic session in Jamaica in May 2009 we noted that the ACC had not followed its own rules in conducting the crucial vote on the Covenant with the result that the vote to defer Section 4 probably did not effectively pass the Council. And we also noted that in the confusion in Jamaica, it is doubtful that the members sufficiently understood what they were actually voting on to make that vote even morally authoritative. ACC officials suggested that a move away from western parliamentary procedures placed great weight on decisions of the chairman, who could discern the sense of the meeting, but in fact the chairman was actually corrected twice during the crucial vote"”once when he ruled the controversial "Trisk amendment" out of order and then later when he ruled that a second vote was required to pass the resolution as amended. This confusion was televised over Anglican TV (and later transcribed) so the debacle is preserved for all to see. From that moment on many Communion members lost all confidence in the ACC as a viable and representative Instrument of Communion. In the year since the ACC meeting in Jamaica, it has become increasingly clear that the problems so evident there were not isolated events but are endemic to the operations of the Council and its Standing Committee. We have written about this repeatedly in recent months, including publicly here, here, here and here. The most recent news concerning resignations from and dubious appointments to the Standing Committee, released nearly simultaneously by the ACNS and TEC's Episcopal News Service, once again present these issues in acute form. 1. Transparency In his December 18, 2009 letter formally transmitting the Anglican Covenant to the member churches of the Communion, the Secretary General referred to a document then publicly unknown to explain key procedures for determining membership in the ACC. This document has since come to be called the "new" or in some cases, "secret," constitution. We noted this in our essay posted a few days later on December 22: Thus, there apparently is a new ACC constitution (now referred to as Articles of Association) that changes the membership procedures for the ACC.  This new constitution (which has not been made public) also applies in some way to the adoption of the Covenant by other churches. When the Secretary General was subsequently queried by TEC progressives about this, he explained the background to the reorganization of the ACC, amended his letter to the member churches after the fact to refer to both the "new" and the existing constitutions and stated that as of January 6, 2010, the ACC was still awaiting approval by the UK legal authorities to implement the new constitution. All of this is helpful information, but it was disclosed in private correspondence to TEC bloggers, not posted on the Communion website. The new constitution still has not been made public; the constitution posted to this day on the Communion website is the "old" one. Nor is this an administrative oversight. As recently as April of this year, the old constitution was publicly posted with erroneous membership provisions, then removed for several days altogether and finally replaced with a corrected version of the "old" constitution. And as recently as last month, those inquiring of the ACO were told based on legal advice that the "old" constitution was "the existing" one, but that the "new" constitution was "similar." And  now on the eve of another Standing Committee meeting we are informed (by ACNS and ENS) of resignations that have not been previously announced by those involved and controversial appointments that were made at the last meeting over six months ago. We will turn to the substance of these announcements next, but this lack of transparency has itself become a contributing factor to the crisis in the Communion, a crisis so acute that even the Archbishop of Canterbury acknowledges that maintaining "outward unity at a formal level" is no longer a "good thing" and the Secretary General states that key discussions are "at a point of collapse." 2. Failure to Follow the Rules The point is often made by those who would promote the ACC as the paramount body of the Communion that it is the only body with a written constitution. Indeed, the Archbishop of Canterbury himself called attention to this constitution in his Pentecost letter when he noted that membership on both the ACC and its Standing Committee is governed by the ACC constitution. But if these bodies are governed by formal rules, it is imperative that those rules be followed. And it is becoming ever more evident that not only are the rules ignored, they are applied unevenly to benefit some provinces and disadvantage others. As already noted, we and others have written repeatedly about the numerous constitution and bylaw provisions being flouted by TEC in an effort to keep Bishop Ian Douglas on the Standing Committee. We will not repeat those points here, but only note that during the recent Executive Council meeting, the President of TEC's House of Deputies and Vice Chair of the Executive Council described both TEC's clerical and episcopal seats on the ACC as "open" and noted that there were contested elections for both seats. The implications of these facts under the ACC constitution and bylaws are straightforward: (i) when the clerical seat formerly held by Douglas became "open" he automatically ceased to be a member of the Standing Committee under Article 2(f) of the ACC bylaws; and (ii) under Clause 4(c) of the ACC constitution, Douglas cannot re-join the ACC itself for six years. Similar issues arise with the Standing Committee's attempt to appoint the Rev. Janet Trisk of Southern Africa to replace a lay representative on the Standing Committee. The ACC constitution provides that the ACC members of the Standing Committee are to be appointed by "the Council." Article 7 of the bylaws supplements this constitutional article by providing that in the case of vacancies between meetings "the Standing Committee itself shall have power to appoint a member of the Council of the same order as the representative who filled the vacant place." If, as seems reasonable, the bylaw is a lawful supplement to the constitution and is not itself unlawful, the Standing Committee is clearly authorized only to appoint someone of the same order. It is not given any power to go beyond not only the constitution but even the additional authority granted in the bylaws by appointing someone such as Trisk who is not of the same order as the previous member. The attempt to appoint Trisk, therefore, was ultra vires and ineffective. And, lest anyone claim the Trisk appointment is valid under the "new" unpublished constitution, it should be emphasized that it was done last December when the old constitution was unquestionably still in effect. It cannot escape notice, moreover, that Trisk was the proponent of the controversial amendment at ACC-14 in Jamaica that effectively stripped Section 4 out of the Covenant to be revised. If permitted to serve on the Standing Committee, she would join several others, including Bishops Katharine Jefferts Schori, Ian Douglas and Phillip Aspinall and Dr. Anthony Fitchett who have criticized the Covenant or who sought to block or delay its adoption. Yet this is the very body that has taken on the primary role in administering that same Covenant. And the announcement that two Primates from Africa have resigned and that the Primate of Bangladesh has become a "member" raise more questions than they answer. As to Bishop Mouneer's replacement, Bishop Paul Sarker, the ACC constitution requires that the ex officio Primatial members also be members of "the body known as the Standing Committee of the Primates of the Anglican Communion in each case for so long as they shall remain members of such Standing Committee." In his letter of resignation, Bishop Mouneer stated that "I hereby submit my resignation from the Standing Committee of the Anglican Communion"¦.I would like to assure you that my resignation from the SCAC will not stop my commitment to the Primates' Meeting"¦." There has been no public announcement that Bishop Mouneer has ever resigned from the Primates' Standing Committee (as opposed to the ACC and its Standing Committee).  We do not know whether he has or not, but if he has not, on what basis can Bishop Sarker be made a "member" of the ACC or its Standing Committee?  The ACC constitution defines "alternate member" as someone "invited to attend a meeting if the ordinary member is unable to be present for a whole session of the Council." Is Bishop Sarker a member or alternate member of "the body known as the Standing Committee of the Primates"? If merely the latter, how can he become a member of the ACC or its Standing Committee? The same questions arise with respect to Archbishop Akrofi. Was he ever a member (as opposed to an alternate) of the Primates' Standing Committee and thereby a member of the ACC and its Standing Committee? If not, how can he resign? Finally, until this point, Archbishop Orombi has insisted publicly that he has not resigned from the ACC's Standing Committee even though he has refused for reasons of principle to attend meetings. Has he changed his position? We do not know. But given his previous public position the question may arise whether a provision in the "new" constitution (not contained in the existing constitution) that permits a trustee director to be removed for failure to attend two meetings has been applied prematurely to remove Archbishop Orombi without his consent? It is at points like these that questions of the proper application of the rules and questions of transparency become so blurred as to be inseparable. 3. Application of the Moratoria In his Pentecost letter, the Archbishop of Canterbury recognized that Communion churches that do not share the faith and order of the Communion as a whole cannot represent the Communion on bodies responsible for faith and order. The internal bodies with this responsibility include the Standing Commission on Unity, Faith and Order, but the Archbishop stated explicitly that there are other internal bodies implicated as well, and indirectly identifies the ACC, its Standing Committee and the Primates' Meeting as among them.  The Secretary General recently reiterated this conclusion in remarks reported in the recent communiqué of TEC's Executive Council, which noted: Canon Kearon's statement that The Episcopal Church does not "share the faith and order of the vast majority of the Anglican Communion." He also responded to concerns about incursions by other provinces of the Communion. He acknowledged that the Archbishop of Canterbury considers certain activities of the Province of the Southern Cone to constitute an incursion, but is awaiting clarification about the extent of these activities from the primate of that province. However, such ongoing breaches of the moratorium on incursions do not rise to the same level of departure from the faith and order of the Communion as does the full inclusion of lesbian, gay, bisexual and transgendered Christians. The ACC's Standing Committee had already addressed these very issues in May 2009 on the eve of the Council meeting in Jamaica when it considered who was "qualified" to serve as an ACC member. At the last minute the Standing Committee, reportedly at the request of TEC, reversed the prior determination of the Secretary General and ruled that Uganda's alternate clerical member was not qualified to serve as an ACC member. The Secretary General explained the decision as follows: The Joint Standing Committee has discussed this at length. We understand that the Revd Philip Ashey's relationship with the Church of the Province of Uganda is as a result of a cross provincial intervention, and note that such interventions are contrary to the Windsor Report and other reports accepted by successive meetings of the Instruments of Communion, including Primates' Meetings which you have attended. Therefore we regret to inform you that Mr Ashey's current status means that we cannot regard him as a 'qualified' member according to Section 4(e) of the current Constitution. TEC acknowledges that the leadership of the Communion does not regard the matter at issue in the Ashey precedent as rising "to the same level of departure from the faith and order of the Communion" as TEC's own repudiation of the Communion's moratoria. Yet TEC still claims the right to have its representatives seated, not as one-time alternates or even as ordinary ACC members, but as members of the ACC's Standing Committee. And the two representatives concerned, the Presiding Bishop and Bishop Douglas, are personally and directly responsible for TEC's departures from Communion faith and order: the Presiding Bishop as chief consecrator of Mary Glasspool and Douglas as one who permits in his diocese public blessings of same sex unions and marriages. It should be noted that under the Connecticut policy, blessings are available to all parishes in the diocese and thus its policy is even broader than the policy in New Westminster in Canada about which the Windsor Report concluded: We believe that to proceed unilaterally with the authorisation of public Rites of Blessing for same sex unions at this time goes against the formally expressed opinions of the Instruments of Unity and therefore constitutes action in breach of the legitimate application of the Christian faith as the churches of the Anglican Communion have received it, and of bonds of affection in the life of the Communion, especially the principle of interdependence. 4. Unrepresentative Nature of the ACC and Its Standing Committee The problems addressed to this point are only exacerbated by the unrepresentative nature of the ACC and its Standing Committee. This problem is structural and pervasive; it is not a function of the vagaries of the last elections or recent resignations, although they do not help the problem to be sure. The structural problem starts with the constitutional membership schedule of the ACC. Several western and European churches, including TEC, Canada and Australia are guaranteed three members, while large African churches such as Kenya, Sudan, West Africa and Burundi get only one or two. Indeed, TEC (with weekly attendance of approximately 750,000), Canada (with 325,000) and Australia (fewer than 180,000) probably do not equal the size of the church in Kenya even when combined, yet each of these western churches has three ACC members while Kenya has only two. Wales, with 50,000 weekly churchgoers, has the same ACC representation as Kenya and Sudan (with millions of members each), and twice as many as Burundi and West Africa, which dwarf Wales in size. The ACC is the body that elects the majority of members to the Standing Committee, in part through a method of cumulative voting (single transferrable votes) that permits the concentration of voting power to benefit a small number of candidates. These ACC procedures are reinforced by the practice of the Primates to elect their five members by a regional voting scheme that allocates three of the five seats to regions having only 20% of the Communion's active membership and limits the largest region, Africa, with over half the Communion's active members, to one seat. The cumulative effect of these provisions is demonstrated by the list of the thirteen members scheduled to attend the next meeting of the Standing Committee. Three are from the UK, two from the US, and two more from Australia and New Zealand. The other six members, fewer than half of the total, are spread among the churches of the Global South, which comprises approximately eighty percent of the Communion. 5. Can This Standing Committee Function as the "Standing Committee of the Anglican Communion"? It is beyond doubt at this point that this Standing Committee as currently constituted does not enjoy the confidence of a majority of the Communion. There have been five resignations in less than a year. One of those resigning, Bishop Mouneer, called on the entire committee to resign. Archbishop Orombi has also stated publicly his lack of confidence in the committee as currently composed. Archbishop Ian Ernest, Chairman of CAPA and one who has long supported the Communion's Instruments, who attended the Lambeth conference and who was part of the Conference design team, has stated that he will no longer attend Primates' Meetings if TEC's Primate is present.  And the Singapore communiqué of twenty Global South provinces explicitly upheld the positions of Archbishops Mouneer, Orombi and Ernest and called for the Standing Committee's responsibilities for Covenant oversight to be transferred to the Primates. It is difficult to conceive of a more categorical rejection of this Standing Committee by a majority of the Communion. The problems with the ACC's Standing Committee go well beyond the current controversies, however, and are themselves structural in nature. As the Archbishop of Canterbury himself has acknowledged in his Pentecost letter, the Standing Committee is "governed" by the provisions of the ACC constitution. All of its members, including the Primatial members, are members of the ACC and their duties on the Standing Committee are determined by the ACC governing instruments. Indeed, one of the Standing Committee's primary fiduciary responsibilities under UK law is the administration of charitable assets held by the ACC, soon to be a UK company. The ACC-elected members on the Standing Committee have no responsibility to the Primates' Meeting comparable to the fiduciary duties owed by the Primatial members to the ACC. And even if we ignore this structural problem, it is difficult to see how this committee could function as the standing committee of the entire communion when the majority of its members (9 of 15) are elected by the ACC, a minority (5) are elected by the Primates and not a single one is elected by the oldest and most important of the conciliar Instruments, the Lambeth Conference of bishops. Still further issues arise when we note that this committee like the ACC as a whole is being increasingly subjected to UK law even as the bishops in the Church of England are raising alarms over the threat to religious liberty posed by UK and European laws and regulations. Our colleague, Ephraim Radner, has stated that it was never understood by the Covenant Design Group that such a committee totally governed by the ACC would have primary responsibility for administering the Covenant. Nor has it been approved by the Communion's conciliar Instruments. Although the deliberations at the Primates' Meetings are not public, Archbishop Orombi has stated: There is, however, no "Standing Committee of the Anglican Communion." The Standing Committee has never been approved in its present form by the Primates Meeting or the Lambeth Conference. It is in fact questionable whether the ACC's Standing Committee's role as "Standing Committee of the Anglican Communion," with the greater responsibilities that title implies, has been approved even by the ACC, which did not use that name for its Standing Committee when it amended its constitution in Jamaica. All this leaves the current committee ill-defined and ill-equipped legally to perform the new duties arising under the covenanted Communion, especially in the face of widespread loss of confidence in both its membership and its commitment to observe legal requirements. In fact a legal challenge has already arisen from within the Standing Committee itself. One of its members, Anthony Fitchett of New Zealand, has requested legal advice on the "appropriateness" of one section of the Covenant based on possible conflict with the ACC constitution. Dr. Fitchett makes no effort to disguise his own distaste for the Covenant: Section 4.2, on the other hand, contains provisions that are punitive, controlling, and completely un-Anglican, and reflect the movement towards centralized, Curia-like control that was rejected by the Lambeth conference"¦over a century ago.... Regardless of Dr. Fitchett's personal opinions of the Covenant, his question serves only to highlight the dubious nature of the assumption that the ACC Standing Committee is the appropriate committee to administer the Covenant. For as we have pointed out, if the legal advice is indeed that the Covenant provision is not appropriate under the ACC constitution, this would not affect the Covenant, which is a separate legal instrument not subordinate to the ACC constitution, but would instead prove beyond doubt that the current Standing Committee is legally disqualified from acting as the Covenant requires. 6. Conclusion A year ago, after analyzing carefully the chaotic vote on the Trisk amendment in Jamaica, we expressed the "hope that this will further demonstrate to the Communion the corrosive effect the current conflict and the efforts of those who seek to defeat or disable the Covenant are having in the Communion." We have to conclude, however, that in the past year this hope has not been realized and the corrosion has only spread. Many of the primary players at Jamaica are now on the Standing Committee itself and they freely denounce and try to subvert the very Covenant they are to administer. TEC's Presiding Bishop, like Dr. Fitchett calls the Covenant "un-Anglican," challenges the Archbishop of Canterbury's understanding of Pentecost and dismisses canonical requirements of the Church of England as "nonsense." In reply, a Lambeth Palace official noted pointedly that one of the statements made by the Presiding Bishop was not true. The Secretary General notes that TEC does not "share the faith and order of the vast majority of the Anglican Communion" and that some Communion discussions are "at the point of collapse."  The Secretary General interrupted his vacation to meet with TEC's Executive Council at its request only to be treated rudely while he was there and ridiculed after he left. Five resignations have been reported by the ACC Standing Committee in the last six months, and the Secretary General described its last meeting as the "worst meeting" of his life. The Communion can hardly tolerate another year like the last one. It is essential that the Communion have structures that work in the midst of ongoing crises in several churches of the Communion. The corrosive effect we spoke of a year ago must now be addressed as a matter of urgency. Five things are needed: ACC processes must be transparent; if the Communion churches are to give proper consideration to the Covenant, they must know what the ACC constitution and bylaws are. At a time of great stress, membership and procedural rules must be scrupulously followed; having two members of the Standing Committee serve in patent violation of the published rules should be unacceptable to anyone concerned with the rule of law. TEC must be disqualified from serving on any bodies concerned with faith and order, including the Primates' Meeting and the Standing Committee so long as it insists on departing from the faith and order of the Communion and repudiating the agreed moratoria. The ACC and its Standing Committee must begin the process of reform to make them representative of the entire Communion and the Primates' Standing Committee must also be made more representative. Given the structural and practical problems besetting the ACC's Standing Committee, a provisional advisory committee enjoying the confidence of the Communion must be established to assume initial responsibility for Covenant matters. If the Standing Committee itself refuses to designate such a committee, the member churches should do so themselves. The opportunity to restore the Communion through the Covenant is a last chance that cannot be wasted.