Asking The Wrong Question: New Zealand and The Covenant

The Reverend Canon Professor Christopher Seitz The Reverend Dr. Philip Turner The Reverend Dr. Ephraim Radner Mark McCall, Esq. Reports this week from the General Synod of the Anglican Church of Aotearoa, New Zealand and Polynesia indicate that it passed a resolution approving in principle the first three sections of the Anglican Covenant, but requesting legal advice on the "appropriateness" of Paragraph 4.2.8. The relevant clause of the resolution as passed reads as follows: Requests the Standing Committee of the Anglican Communion to obtain an opinion from the Legal Advisor to the Anglican Consultative Council and from the Chancellors and Legal Advisors Committee of this church regarding the appropriateness of the provisions of Clause 4.2.8 of the proposed Covenant in relation to decisions regarding membership of the Anglican Consultative Council.... Although this request for legal advice applies only to Paragraph 4.2.8, it is clear from the vote and the debate that the dissatisfaction in New Zealand extends to Section 4 as a whole. The resolution was authored by Dr. Tony Fitchett, who was the chairman of the resolutions committee at ACC-14 in Jamaica that drafted the resolutions on the Covenant debated at that ACC meeting. Since ACC-14, Dr. Fitchett has served on the standing committee of the Anglican Consultative Council, the body that approved the final text of the Covenant last December. Whatever Dr. Fitchett's views of the Covenant were in December, he is now very much opposed to Section 4: 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"¦.Though the language used has been moderated, and has become fuzzier, in successive drafts, the general thrust of Section 4.2 remains as it began: that a Communion-wide body"¦can discipline a province and recommend its exclusion from Communion structures. While not stated in the resolution, the theory on which Dr. Fitchett and the General Synod are proceeding is readily apparent. Paragraph 4.2.8 requires that members of churches that have not adopted the Covenant recuse themselves from Communion bodies, including the "Standing Committee of the Anglican Communion" as defined by Section 4, on matters related to the Covenant: (4.2.8)  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. By requesting legal advice from the ACC's legal advisor on the "appropriateness" of this paragraph, New Zealand is inquiring whether this provision may be unlawful under the ACC constitution and UK law (under which the ACC is in the process of incorporating), presumably because it would impose a restriction on the members of the Standing Committee when considering ACC membership that is not found in the ACC constitution or UK law. If the legal advice in fact is that such a restriction in the Covenant cannot bind the Standing Committee under the ACC constitution, Dr. Fitchett and his allies will argue that Paragraph 4.2.8 is "inappropriate" or "ultra vires," i.e., unlawful and unenforceable. One point to note at the outset is that the appropriate time to request and receive legal advice on this matter from the ACC's legal advisor was in December before the Covenant text was approved by the ACC's standing committee and sent to the member churches for adoption. More fundamentally, however, in questioning the "appropriateness" of 4.2.8, New Zealand is asking the wrong question. The relevant question is not "Is Paragraph 4.2.8 appropriate or lawful under the ACC constitution and UK law?" but rather "Is the standing committee of the ACC as governed by the ACC constitution and UK law legally permitted to perform the functions required of the 'Standing Committee of the Anglican Communion' as defined by Section 4 of the Covenant?" The Covenant and the ACC constitution are independent documents. Neither is subordinate to the other. The ACC constitution can no more render "inappropriate" part of the Covenant than the Covenant can amend the ACC constitution. If the ACC standing committee cannot legally do what 4.2.8 requires, it cannot act as the committee defined by Section 4. But that does not make 4.2.8 inappropriate or unlawful; it merely disqualifies the ACC standing committee from serving as the Section 4 committee. Thus, the relevant legal advice is not on the question of the "appropriateness" of Paragraph 4.2.8; that is a question for the covenanting churches, not lawyers. The legal question is whether the ACC's standing committee is disqualified from acting as the Standing Committee defined by Section 4 of the Covenant absent amendment to the ACC constitution. It must be emphasized that the "Standing Committee" governed by the ACC constitution is the standing committee of the ACC. Indeed, this is tautological. The Standing Committee established by Section 4, however, is not defined by reference to the ACC constitution, but by the duties this Committee must perform under the Covenant. We at ACI have been concerned from the outset about the qualifications of the ACC's standing committee to act as the Committee defined by the duties specified in Section 4 of the Covenant. In January, shortly after the Covenant text was finalized, we noted that: Contrary to a widely shared assumption, Section 4 does not in fact explicitly identify this "Standing Committee of the Anglican Communion" with any pre-existing committee. It does, however, define the Committee's responsibilities and thereby determines the qualifications for any committee that would fill this role.... The working group that revised Section 4 seems to have assumed that the recently reorganized standing committee of the ACC would function as the Standing Committee of the Anglican Communion, and the ACC committee itself appears ready to assume the functions of the committee defined by Section 4 of the Covenant. But it is increasingly doubtful that this assumption, which has not yet been explicitly and publicly ratified by any of the Instruments, is consistent with the text of Section 4 or acceptable to a large part of the Communion. *** [W]hen the legal reorganization of the ACC is completed, the members of the ACC standing committee will have duties and responsibilities to an entity, the ACC, governed by UK law. These duties and responsibilities will be determined by UK law and will be owed to the entity, the ACC, on whose standing committee they serve. Can the members of the ACC's standing committee function in the way contemplated by Section 4 for the Standing Committee of the Anglican Communion? Can the committee be "responsible to" the Primates Meeting? Can it consistent with its legal duties ever act contrary to the advice or direction received from the ACC and accept instead the advice of the Primates or the covenanting Churches? If the legal advice is that this would not be inconsistent with the fiduciary duties imposed under current UK law, how might future court decisions or legislation change this advice? How will substantive provisions of UK and EU law, such as non-discrimination regulations, affect the deliberations of this committee on Communion disputes? http://aci.local/2010/01/the-anglican-communion-covenant-where-do-we-go-from-here/ If the legal advice in response to New Zealand's request is that the ACC's constitution does not permit its standing committee to act in compliance with the requirements of 4.2.8, this will establish beyond question that not only has the ACC's standing committee failed to obtain the consent of the Communion's Instruments and churches to act as the Section 4 committee, it is in fact legally incapable of doing so. Accordingly, we renew our call for a provisional Standing Committee comprised of the Primate (or an ACC member) of each church adopting the Covenant that will be charged with organizing a "Standing Committee of the Anglican Communion" pursuant to Section 4 of the Covenant and with performing the functions defined under Section 4 until such time as a permanent Standing Committee is duly constituted and approved by the covenanting churches.  Such a committee would by definition deal only with matters arising under the Covenant; it would not in any way interfere with the constitutional duties of the current standing committee of the ACC. If, on the other hand, the legal advice is that the ACC's standing committee can in fact comply with Section 4, including Paragraph 4.2.8, under current UK law, it nevertheless leaves unanswered the other questions that have been raised concerning the ability of this committee to function under Section 4 with the confidence of the Communion.  One of our concerns expressed in January was that a committee legally governed by the ACC constitution and UK law cannot meet the requirements of the Covenant text itself, which is not governed by UK law or subordinate to the ACC constitution. We noted particularly the requirement that the Section 4 committee is to be "responsible to" the Primates' Meeting and to take advice from the covenanting churches and Instruments of Communion. Whatever answer is given to this query from New Zealand, raised before the Covenant has even been adopted, the query itself proves our point that this issue will be an ongoing source of legal controversy and potential conflict of interest. And recent events have only eroded further the credibility of the ACC committee in the eyes of much of the Communion. At a minimum, therefore, urgent action is necessary to address this widespread loss of credibility. Accordingly, even if New Zealand's question is answered contrary to its hope, we would continue to view some kind of provisional committee as essential and would propose the following two step solution to the Standing Committee problem. The first is to convene an "Advisory Committee" to "advise" the Standing Committee (assuming it can lawfully function as required under Section 4) on Covenant matters. This advisory committee would be the initial decision maker on all Covenant matters coming before the Standing Committee in the next few years during the implementation process. We would suggest that the Advisory Committee consist of the three ex officio members of the ACC standing committee (Archbishop Williams, Bishop Tengatenga and Canon Elizabeth Paver) and one member (either the Primate or one of the ACC members) selected by each church when it adopts the Covenant. This would assure that this group has the confidence of those who support the Covenant. It cannot be appointed as in the past so as to have substantial representation by those who are in fact hostile to the Covenant's purposes and are seeking to undermine it. Both the ACC's rules and Section 4 of the Covenant contemplate such an advisory committee. The ACC bylaws (2.d) state that "The Standing Committee may delegate any of its powers to committees as it thinks fit and any committee so formed shall, in the execution of the powers so delegated, conform to any requirements imposed on it by the Standing Committee. Any such committee may call advisers." Moreover, Paragraph 4.2.2 of the Covenant provides that "the Standing Committee shall be supported by such other committees or commissions as may be mandated to assist in carrying out this function and to advise it on questions relating to the Covenant." So there would be no legal or procedural obstacles to such an advisory committee. The second step is equally necessary, however, and that is to remove the two TEC members of the current standing committee. Even with an advisory committee, the ACC standing committee would retain legal authority under this hypothesis, and it will never have the confidence of a majority of the Communion with the two TEC members on it. Fortunately, there are legal solutions to this problem readily to hand. If the Presiding Bishop is not invited to the Primates' Meeting, she should be automatically disqualified from serving on the Primates' standing committee (since she is no longer a member in good standing of the Primates Meeting she is to represent) and consequently from serving as an ex officio primatial member on the ACC and its standing committee.  This decision is within the discretion of the Archbishop of Canterbury since under the Covenant the Primates' Meeting is "convened" by him and he is the one who "gathers" the Primates to their meetings. Paragraph 3.1.4 of the Covenant gives him exactly the same authority in relation to the Primates' Meetings that he has in relation to the Lambeth Conference, from which his authority to withhold invitations is undisputed. In the past the Archbishop of Canterbury has acknowledged indirectly that he has this authority. When he wrote the Primates in December 2006 concerning the upcoming meeting in Dar es Salaam, Archbishop Williams advised them that: "I have decided not to withhold an invitation to Bishop Katharine Jefferts Schori as the elected Primate of the Episcopal Church to attend the forthcoming meeting. I believe it is important that she be given a chance both to hear and to speak and to discuss face to face the problems we are confronting together." He indicated in this letter that this was his decision based on open questions about TEC's response to the Windsor Report. Those questions have now been conclusively answered by TEC, and a different decision is now required if the Communion is to survive. Separately, when Ian Douglas was consecrated bishop he was disqualified from membership in the ACC (and its standing committee) since that would give TEC two bishops among its three members, which is not permitted under the ACC constitution. As The Church of England Newspaper reports, both TEC and Douglas take the position that he can be elected in June to the episcopal seat of the retiring Catharine Roskam (who continues to serve under ACC rules until just before the next meeting) and thereby remain on the ACC standing committee. But this result would violate ACC rules, and this position entails in any event the recognition that his current clerical seat has been relinquished by his consecration to the episcopacy.  In other words, his seat on the ACC standing committee is already vacant, and he cannot resume that seat if he is elected to Roskam's seat, which would not take effect until the next ACC meeting in any event under ACC rules (Resolution 4:28). Under the ACC bylaws (Article 7) the standing committee is now required to appoint a clerical member to fill the seat on the standing committee formerly held by Douglas. Indeed, there is a precisely analogous situation in Canada to that of Douglas and TEC.  Stephen Andrews, like Douglas, went to ACC-14 in Jamaica as a clergy member for his first meeting.  After ACC-14, Andrews was consecrated bishop by the Anglican Church of Canada.  Canada understands that Andrews ceased to be a member of the ACC upon his consecration and therefore that he has now been replaced by his clerical alternate.  Indeed, Andrews was elected bishop before ACC-14, but his consecration delayed until after the meeting in Jamaica (we are told) precisely because Canada understood the ACC implications of his consecration.  If TEC is permitted to circumvent the ACC rules to keep Douglas on the ACC and its standing committee, especially after the decision to disqualify Uganda's chosen ACC representative at Jamaica, any remaining trust in the ACC will be lost forever. We take no pleasure in these observations. What is at stake, however, is not the identity of individuals in institutional bureaucracies but the fate of the Anglican Communion.  Will the Communion survive?  If it does, it will be as a communion with autonomy and accountability.  The Anglican Covenant with a robust Section 4 establishes such a communion. A TEC that consecrates Mary Glasspool against the expressed mind of all four Communion Instruments is a body determined to see that no such communion will exist.  We continue to believe that a communion with autonomy and accountability is not only desirable, but necessary.  And the only means to such a communion are the steps, however painful, described above.