The New ACC Articles: Procedural Issues

The Reverend Canon Professor Christopher Seitz The Reverend Dr. Philip Turner The Reverend Dr. Ephraim Radner Mark McCall, Esq. Michael Watson, Esq. Although we have written before of our concerns over the substance of the new Articles of Association of the Anglican Consultative Council, until now we have said little about our concerns over the procedures followed by the Anglican Communion Office in managing the development of these Articles. Others voiced complaints and we remained hopeful that the ACO would respond to these complaints with transparency and by providing satisfactory answers. This has not happened. We are dismayed that the Communion Office is either unable or unwilling to provide even the most basic information to those who have raised serious concerns: what information was provided to the provinces; when was it provided; and what was their response. An amendment of the constitution is a significant action by an organization, especially one subject to legal duties. Maintaining this information is the most basic level of diligence required of an organization's secretariat. The lack of transparency and public accountability throughout this process is one of the most regrettable episodes of Communion life in recent years. Our concerns are only heightened by information suggesting that the ACO may not have followed advice given to it on the necessary procedures for adopting the new Articles. In November 2008 Robert Fordham of Australia, then a member of the ACC standing committee and the "convenor" of its "sub-committee on Constitutional Issues," addressed the Joint Standing Committee on the status of the new constitution and "what steps have to be taken at this stage." He advised that the revised draft of the Articles needed to be submitted to the provinces for ratification at that time. He noted that after ACC-13 had approved a draft of the new Articles in 2005 the ACC's legal advisor, Canon John Rees, had held "extensive discussions" with the UK charity commission and had engaged in "considerable work" to produce a new draft for the February 2008 JSC. At that meeting in February 2008, the JSC then amended the draft further before approving it. Mr. Fordham then states: The next and final step is to circulate the Constitution in this new format to each of the Member Provinces of the Communion to seek their ratification. For the new Constitution to come into effect support will be required from two-thirds of the 39 Provinces. This necessary final step is distinguished from previous communications with the provinces referred to by Mr. Fordham in the same memorandum: The Secretary General sent an Explanatory Memorandum to Primates and Provincial Secretaries in May 2006 seeking their response to each of the ACC-13 resolutions dealing with the Constitution and although many of the Provinces have not replied in writing those that have have been supportive of this proposal and as indicated above the Primates have also given their endorsement. The Fordham memorandum concludes that: To summarize, the revised ACC Constitution incorporating two of the three proposals for constitutional change passed by ACC 13 has now been finalized and in accordance with the decision taken at the last meeting of the Joint Standing Committee will now be sent together with a comprehensive explanatory Memorandum to the Provinces of the Communion seeking their ratification. (Emphasis added.) It is hardly a surprising conclusion that the ratification requirement would apply to the actual text proposed for adoption. Article 10 of the prior constitution required that amendments "shall be submitted by the Council to the Constitutional bodies [provinces]." A plain reading of this provision indicates that the final text should be approved by the full council and then sent to the provinces for ratification, especially when the amendment is an entirely new constitution. It hardly comports with the concept of ratification to suggest that the ratification occurs "in principle" prior to the detailed drafting of the document to be ratified. There is nothing in the public record, however, to indicate that the recommendation of the Constitutional Issues sub-committee was followed. We are now being told that provincial consents were sought, not in 2008 after the revised draft was prepared, but in 2006, presumably through the memorandum sent out by the Secretary General in May 2006 that Fordham mentions when he reports that "many of the Provinces have not replied" even two and a half years later. In fact, the account now being given publicly goes straight from the 2005 draft Articles to provincial approvals (finally) in 2009 and only then to the Charity Commission. For example, Canon Rees stated on August 11 that: Q. There's recently been media speculation that proper procedures weren't followed as regards getting assent to the change from the old constitution to the new. It's good to see that there are Anglicans out there who care that things are being done properly. Certainly no one in the Communion is above criticism. I've already explained that a change to the Constitution was planned and discussed at several ACC meetings. Then, as required by Article 10 of the old constitution, the draft was circulated for approval by the provinces of the Communion after the 2005 Conference. It finally achieved the requisite level of replies"”two thirds of Anglican Communion provinces"”and this was reported to the ACC in Jamaica in 2009, after which it was submitted for registration at Companies House and by the Charity Commission. Q. Were any major changes made in the final Constitution since the approval in 2009? No. Due to changes in company and charity law some points needed tightening up as to directors' duties and on conflict of interest, but there are no differences of substance. There are noticeable differences of layout (what used to be in the 'Memorandum' is required by the Charity Commission now to be in the 'Articles', which serves to simplify rather than complicate), but the material remains essentially the same as in the drafts circulated 2005-2009. (Emphasis added.) And on August 12, 2010, the ACO stated that: Copies of the new constitution with an accompanying letter were sent by Canon Kearon to all Provinces in 2006, and it was discussed and approved by the primates at their meeting in 2007. By the time of the ACC meeting in Jamaica two-thirds of Provinces had indicated their assent. (Emphasis added.) Both of these statements indicate that the now outdated 2005 draft was the one circulated to the provinces, not the revised draft approved by the JSC in 2008 after "considerable work" and "extensive discussions." Indeed, there is no indication in the statements by the ACO and Canon Rees of any efforts to obtain ratification of a version that included changes made after 2005. It is interesting to compare these explanations with those offered by the Secretary General. In a January 2010 letter to the progressive blog, the Episcopal Cafe, Canon Kearon stated: The change (in effect a change to the Constitution) required approval in principle from a majority of the provinces, and the Standing Committee just before ACC 14 in Jamaica in 2009 noted that the requisite number of approvals had been received. The change to the status of the Primates' Standing Committee with respect to the ACC and its Standing Committee came into effect when approvals had been received. The company itself is now in the process of registration with the Charity Commissioners. (Emphasis added.) And in a letter last month responding to concerns raised privately by ACI, but since shared with other members of the Communion, Canon Kearon did not even mention provincial ratification in outlining the eleven-year process of transforming the ACC. He pointed to approvals by the ACC in 2005 and the Primates' Meeting in Dar es Salaam in 2007 (where it was not mentioned at all in the communiqué issued at the end of that difficult meeting) and then noted: The text was finalised at the Standing Committee meeting just before ACC 15 in Jamaica. Soon after that meeting the Constitution (or Memorandum and Articles) was filed with Companies House in London prior to approval by the Charity Commissioners. Companies' House put the text on its website (as is usual), and so the document was in the public domain, and approval by the Charity Commissioners was received just before the recent Standing Committee meeting, at which point it became operative. Indeed, neither the memorandum by Mr. Fordham nor the statements by Canon Kearon indicate whether even the earlier 2005 draft was ever sent to the provinces. The Fordham memorandum states that the 2006 Explanatory Memorandum referred to the ACC resolutions, not the text of the proposed Articles. But the ACC resolution said only that: The Anglican Consultative Council: notes and approves the draft memorandum and articles proposed by the Standing Committee in order to reconstitute the work of the Council within the framework of a limited liability company as requested by ACC 11 and ACC 12 authorises the Standing Committee to make such final amendments to the documentation as may be needed in the light of this Council's discussions and the views of the Primates Meeting, and in accordance with legal advice and any further comments received from the Charity Commissioners requests the Standing Committee to establish such a body with charitable status in accordance with the such approved draft Memorandum and Articles as amended as a result of any such views, advice or comments resolves to transfer to the new charitable company all the Council's assets and liabilities in due course and to wind up the affairs of the existing legal entity once the new arrangements are in place. Nothing in this resolution suggests that the constitutional provisions requiring provincial ratification would not be followed as expected after the draft had been revised to reflect the "final amendments," the "views of the Primates' Meeting," and "comments from the Charity Commissioners." A council resolution could not modify this constitutional requirement in any event. Some provinces have stated publicly that they have no recollection of ever being given the proposed Articles themselves or that they received a statement that approval would be presumed unless objection was made (a procedure not contemplated by the constitution). Perhaps this is why Canon Kearon himself says only that approval was sought "in principle," which is not the ratification required by the constitution. In addition to the matter of what version was submitted to the provinces for ratification and when, a separate question of how what was being submitted was described to the provinces may be important.  When the process was initiated at the 1999 meeting of the ACC in Dundee, the process contemplated was that conversion to limited company status was to be consistent with the requirements of the charity commissioners of England and Wales and with legal advice but be "so far as possible in all other respects in accordance with the existing constitutional arrangements." (ACC-11, Resolution 6)  As recently as January 6, 2010 in a letter to a blogger authorized to be made public by Canon Kearon, he stated that the new articles of the charitable company "closely reflect the Constitution of ACC but also conform to the requirements of the Charity Commissioners in the UK."  With this background, and bearing in mind that significant requirements can be subsumed in technical language, the question may reasonably be asked whether the provinces were ever told about changes that altered governance in significant respects but were not required by conversion to a limited company or charity regulation.  For example, were they told about how legal membership in the ACC would be redefined or how the process of voting on future amendments would be changed, including a change that would ensure that what is at issue here - provincial approval of amendments - would never be an issue again because the requirement for provincial approval would be removed? The bottom line is that neither we nor the Communion at large knows what consents were given, when they were given and on what information they were based. We note, for example, that the Church of England states that it consented in 2009 and TEC has stated its General Convention did not give consent. Were they among the "many" provinces that did not respond to the 2006 letter or did they conclude along with the Constitutional Issues sub-committee that further consent was necessary after 2008? We simply do not know the answers to these basic questions. This is no longer merely a matter of restoring trust to the ACO and the ACC standing committee that has been badly damaged by this process. It is now a question of whether there is a real and functioning ACC in any legal continuity with the entity recognized by the Communion's provinces; whether necessary approvals were ever obtained to adopt the new constitution and transfer assets from the former trust; and whether anybody who claims to represent it actually does any longer.  We urge the ACO as a matter of priority to make public: the May 2006 Explanatory Memorandum sent to the provinces by the Secretary General; any other communications from the ACO to the provinces on the new constitution; the 2005, 2008, and 2009 drafts of the new Articles; all minutes of the standing committee addressing this topic; a list of provinces ratifying the new constitution with the dates on which they did so; and any other materials necessary to a full understanding of this process. We note that the standing committee has now begun to make minutes of its meetings publicly available in the interests of transparency. We believe that providing the documents enumerated above would be consistent with this move in the direction of transparency and is crucial in light of the important questions that have been raised about this process. As long as this is not dealt with straightforwardly, openly, and immediately, the credibility of a range of Anglican leaders, touching matters that go well beyond the ACC itself, is being undermined. There may be perfectly good answers to all these questions, but at the moment they have not been given and the attendant uncertainties and confusions are proving deeply destructive of trust in the Communion.