This is the fourth of five articles examining the St. Andrew’s draft of the proposed Anglican Covenant. A study guide from The Executive Council of the Episcopal Church is also available. This article considers the Appendix of the covenant. Previous articles considered Sections One, Two and Three. Tomorrow, Mark Harris considers the future of the Covenant process.
By Sally Johnson
From a lawyer’s point of view especially, the procedures in the Appendix to the Covenant for resolving disagreements raise very serious issues about the real purpose of the procedures, whether the procedures are “fair,” and whether they would be workable and appropriate in light of the polity and governance structure of The Episcopal Church.
The Commentary states that the Covenant “limits the commitments made by the Churches to ones of care and receptivity with respect to Communion relations” involving:
• Consultation
• Communion wide evaluation
• Mediation
• Readiness to consider a request on the controversial matter from the Instruments of Communion
Although it states there is “no intention to erect a centralized jurisdiction,” or to give “juridical force” to the decisions of the Instruments of Communion, the proposed procedures certainly look like a juridical process.
• An “Offense” is specified:
“Disagreements which threaten the unity of the Communion and the effectiveness or credibility of its mission”
• An ultimate consequence for committing the “Offense” is specified:
“Relinquishment by a Church of the force and meaning of the Covenant purposes”
• Who can cause the process to begin is specified:
Any Church (Province of the Communion)
The Church taking or proposing an action
An Instrument of Communion other than the ACC
• Multiple steps and procedures for resolution of the matter are specified including informal conversation, mediation, evaluation by Assessors, issuance of requested courses of action, and determination of whether the “Offense” has been committed
• Appeals are provided for at several junctures
Major Issues:
Definitions. There are no definitions, explanations, or descriptions of critical terms and phrases such as “disagreements which threaten the unity of the Communion and the effectiveness or credibility of its mission” and “relinquishment by a Church of the force and meaning of the Covenant purposes.” The “Offense” and ultimate consequence are vague and subject to vastly different interpretations especially in an international setting. Given the context out of which the Covenant arose, it may well be that the “relinquishment” consequence is intended to mean that a Church can choose to leave or be forced out of the Communion, whatever that means.
Role of Archbishop and Primates. The Appendix provides that “the Instruments of Communion” have several roles in the process. However, since the ACC is the body with the ultimate authority to decide that a Church has “relinquished the force and meaning of the Covenant purposes,” it is not allowed to participate in other steps of the process. Given that the entire process must be completed within five years and many steps happen within a matter of months, it will be rare for the Lambeth Conference to have any role. That means the Archbishop of Canterbury and the Primates are actually the primary players in the process despite the use of “Instruments of Communion” throughout the Appendix.
Lack of Due Process. When the matter is given to an Instrument of Communion for a recommendation or decision, the subject Church has no due process protections: No provision for a trial of any kind, no right to be heard or present evidence, no burden of proof, no standard of proof, no right to confront and cross examine the accusers, and no limit on the scope of the requests that an Instrument can make of the subject Church.
Ease of initiating and continuing the process. The only threshold that must be met in order for the process to begin is that a Church or Instrument of Communion claims an act has or will threaten the unity of the Communion. There is no one who can look at the situation initially and decide that the matter should not go forward. There is no point in the process where someone can say that that the process should end. If informal conversation does not resolve the situation, the Church whose action is claimed to be threatening the unity (not the party making the claim) MUST consult with the Archbishop who MUST take the next steps in the process. Even if the Archbishop refers the matter to Assessors and they determine the unity is NOT threatened (no “Offense” committed), the matter must still be referred to mediation.
Implications for TEC polity. The Church whose acts are the subject of the disagreement must make crucial decisions at several points in the process. The first is for it to determine whether its own action or proposed action may threaten the unity thereby giving rise to the duty to consult. If an Instrument of Communion makes a request of a Church, the Church has six months to accept or reject it. Similarly, the Church has three months to appeal the request to the Joint Standing Committee. General Convention meets once every three years so it likely couldn’t make any of the decisions. The Executive Council meets three times a year so it could make this initial consultation decision and the decision to accept or reject a request from an Instrument of Communion. It would be difficult for it to make a decision that had to be made within three months. However, serious consideration should be given to the question of whether or not the Executive Council has the canonical authority to make such momentous decisions on behalf of the Church. In recent years we’ve seen requests to TEC from the Communion directed to the House of Bishops or the Presiding Bishop rather than to General Convention despite it being the only body with the authority to make decisions or speak for the Church on such matters. There have also been instances in which the House of Bishops or the Presiding Bishop have responded on behalf of the Church, perhaps because a response was due before General Convention could meet or because they thought it was within their authority to respond. The proposed procedures and timelines do not allow for General Convention to exercise its authority as the body that decides and speaks for the whole Church and thus threatens to undermine our polity and governance structure.
Sally Johnson, a deputy to the 2009 General Convention from the Diocese of Minnesota, is former Chair of the Convention’s Canons Committee, and Chancellor to the President of the House of Deputies.