ACC Constitution: interview with legal adviser

Legal adviser John Rees answers questions about the new Anglican Consultative Council Constitution and addresses some of the suspicions about authority creep. Also allays fears that UK or EU equality legislation might force the church to adhere to those laws.

From the Anglican Communion Office:

The Anglican Consultative Council has a new Constitution. How did this come about? What does this mean in reality? How will it affect the work of the Instruments of Communion? The Standing Committee? ACNS spoke to John Rees, legal adviser to find out more.

Q. Why does the Anglican Consultative Council need a new Constitution?

Like many other English charities (the Church Missionary Society for example), unincorporated bodies have been encouraged in recent years to move from traditional trusteeship models into a more modern company structure. One reason for this is to address the issue of trustee liability, and this was the original spur for considering this change in the case of the ACC. Until now, the members of the Standing Committee have had to bear personal liability for the Council’s affairs. This worries lots of trustees of unincorporated charities—because it can put their personal assets at risk—and members of the Standing Committee over the years have often voiced their concern to me about it.

Q. But why did the ACC need to be a charitable organisation in the first place?

There are many tax advantages to having charitable status, in the UK as in many other legal systems around the world. For example, it gives the opportunity to reclaim tax on donations by individual donors, and it provides exemption from business rates on office premises. This boosts a charity’s income very considerably, reduces its outgoings, and is an incentive to individual benefactors who can gain their own tax benefits both in “living giving” and in legacies by will. As a result, the ACC has been a charity since its inception.

A further advantage of charitable status is that it makes for transparency in the charity’s affairs: its annual reports and accounts are submitted to the Charity Commission and are made public in that way.

Q. When did discussions about this change first take place? Who drew up the new articles and on what basis?

The issue was first raised at the time of the ACC meeting in Dundee, Scotland, in 1999, and a drafting committee was established after the Hong Kong ACC meeting in 2002. The drafting committee met with me on a number of occasions between 2002-2005, and the Committee’s draft was the subject of intensive discussion at the Nottingham ACC meeting in 2005.

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.

Q. Can you explain the main differences between the old constitution and new articles?

The primary difference is in the nature of the legal structure itself: it is presented as a “company” in English law – that is to say, a legal entity which is separate from but still accountable to the individuals who are part of it. The Standing Committee remain its trustees, but now as its board of directors (in company law terms); and they continue to be appointed by the representatives of the member churches at their three-yearly plenary gatherings.

Q. What will these articles mean for the business of the ACC and the Standing Committee?

It is not expected that they will make any practical difference to the day-to-day operation of the organisation. The opportunity was taken in the redrafting to clarify some issues (e.g. the appointment of staff in Article 18) and the objects of the Council were more closely defined to emphasise its role in “promoting the unity and purposes of the Churches of the Anglican Communion in mission, evangelism, ecumenical relations, communication, administration and finance”.

Q. What’s your response to those who say this new Constitution is an attempt to give the Standing Committee and/or the ACC more power.

That’s very wide of the mark. The drafting committee took care to ensure that the plenary meeting of the Council would continue to have the same democratic rights to appoint the Standing Committee that it always had in its unincorporated state. The wider membership attending the plenary meetings of the ACC every two or three years remains the body which appoints its members of the Standing Committee and entrusts the Committee with the Council’s work in between its meetings. I have attended a good many Standing Committee meetings over the years, and I can vouch for the fact that its members are very conscious of the interdependence of the ACC with the Archbishop and the Primates and are careful to respect boundaries.

So it’s also misleading to suggest that the ACC would impinge on the authority of the Archbishop or of the Primates’ Meeting. Neither the Archbishop’s role as the pivotal Instrument of Communion, nor his role in calling together the Primates’ Meeting (which itself has no formal constitution) are in any way restricted by these Articles. As the Archbishop’s Registrar for the Province of Canterbury, I would have been very concerned if I had thought there was any intention to do so.

The definition of ‘Primates’ in these Articles remains essentially as it appeared in Article 3(a) of the earlier Constitution. Indeed, the drafting committee went out of its way (in Article 8.1) to emphasise that the Primates should elect their members of the Standing Committee “in such manner as they shall think fit”. The guidance that they, and the ACC’s membership as a whole, should have regard to the need for regional, order and gender balance was carried over from the earlier Constitution, and at best can operate only as an aspiration.

Q. Doesn’t making the ACC an English company subject the council to UK and applicable EU law including equalities legislation?

The incorporation of the ACC as a limited company does not subject the ACC to UK or EU equalities legislation to which it would not otherwise have been subject. The Church of England has played a major part, with other churches in the UK, in achieving and preserving certain exclusions for itself and other religious bodies in relation to this legislation as it has developed over the last thirty years. The Equalities Act would have been equally applicable to the ACC in its unincorporated form because it was also registered as an English charity. Equally, the ACC in its new structure will enjoy the benefit of exclusions from this legislation to the same extent as any other religious organisation in the UK. I share the unease of many religious people about the impact of this British legislation, but it is not right to say that the restructuring of the ACC will have altered its position viz-a-viz the implementation of this law.

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