During Anglican Covenant Week at Episcopal Café, we are featuring three essays from The Genius of Anglicanism, a study guide produced by the Chicago Consultation. This is the first of three articles. The full study guide, which includes eight essays, each followed by study questions, is available here.
By Sally Johnson
In an article titled “Devil and Details” about the Appendix to the St. Andrew’s Draft (February 2008) of the proposed Anglican Covenant, published on Episcopal Café, I raised concerns about the process set out for dealing with disagreements in the Anglican Communion. While the commentary on the proposed covenant that accompanied this draft stated that there was “no intention to erect a centralized jurisdiction” or to give “juridical force” to the decisions of the Instruments of Communion, the proposed procedures looked like a juridical process lacking, however, both adequate due process protections and means of summary resolutions. Additionally, the timelines for resolving disputes were inconsistent with the polity of the Episcopal Church.
Serious concerns were raised around the Communion about the juridical nature of the Appendix and its inclusion in a “covenant” meant to support “bonds of affection.” The Ridley Cambridge Draft (April 2009) replaced the Appendix with Section Four, “Our Covenanted Life Together,” a more general statement of how the covenant would be overseen and how questions about a Church’s actions would be handled. At its May 2009 meeting, the Anglican Consultative Council requested that Section Four of the Ridley Cambridge Covenant be reviewed and revised. That was done by a group appointed by the Archbishop of Canterbury. The final version of the covenant was released in December 2009.
The focus of this article is on the procedures and processes for handling disputes articulated in this final draft. Unfortunately, the deletion of the Appendix and its replacement with Section Four does not resolve any of the issues previously raised. In fact, it may have made matters worse instead of better. The Appendix attempted, if inadequately, to create a justice system in which the outcome could be respected based on the process used to reach it (often referred to as “the rule of law”). Section Four, however, proposes a justice system in which the outcome is supposed to be respected based on the nature of the group that makes the decision, rather than on how the decision is made. In doing so, the new system gives significant power and great discretion to a group that previously did not exist.
In the final draft of the proposed covenant, references to the “Joint Standing Committee of the Anglican Consultative Council and the Primates’ Meeting” have been changed to the “Standing Committee of the Anglican Communion.” While this might appear to be an insignificant change, it may be a highly significant one. The language itself suggests that there is a body, “the Anglican Communion,” that has a “Standing Committee” with independent authority and governance powers separate from the meetings (Lambeth Conference and Primates’ Meeting), the office (Archbishop of Canterbury) and the body (Anglican Consultative Council) referred to in recent years as “Instruments of Communion.”
Overview of Section Four Process
The Appendix to the previous draft of the covenant specified, in some detail, procedures, decision makers and time frames for the processes of handling conflicts under the covenant. In contrast, Section Four of the current covenant provides generally that the “Standing Committee of the Anglican Communion, responsible to the Anglican Consultative Council and the Primates’ Meeting, monitors the functioning of the covenant in the life of the Anglican Communion on behalf of the Instruments” and advises on questions relating to the meaning of the covenant. The Standing Committee is empowered to: make every effort to facilitate agreement;
• take advice from such bodies as it deems appropriate to determine a view on the nature of the matter at question and those relational consequences which may result;
• refer the question to both the Anglican Consultative Council and the Primates’ Meeting;
• request the acting Church to defer a controversial action;
• make recommendations for “relational consequences” to any Instrument of Communion including provisional limitation of participation in or suspension from, that Instrument until completion of the cov- enant processes when a Church declines to defer its action;
• make a declaration as to whether an ac- tion or decision of a Church “is or would be incompatible with the covenant;” and
• make recommendations of relational consequences to the Churches of the Communion or the Instruments of Communion including whether communion is impaired or limited with the acting Church and the practical consequences of such.
While the deletion of the Appendix and reworking of Section Four may have addressed concerns about the overly juridical tone of the Appendix, the changes did not resolve the essential question of what process will be used to exercise the authority given to the Standing Committee and the Instruments of Communion.
With the exception of information about which bodies can raise an objection to a Church’s actions, nothing more is specified about the conflict resolution process than what is summarized above. Other than that, nothing … nothing… is specified about the processes, procedures or timing of the outlined process. In essence, the Standing Committee receives a question, receives assistance from unspecified “committees or commissions” mandated by unspecified authority, takes advice from any body or anybody it deems appropriate and decides whether to refer the question to the Anglican Consultative Council and the Primates’ Meeting. The Standing Committee then decides whether to request a Church to “defer” a decision or action and what relational consequences should result if it does not. It then moves on to a determination of whether or not a Church’s action or decision is or would be “incompatible with the Covenant.” The Standing Committee does this “on the basis of advice received from the Anglican Consultative Council and the Primates’ Meeting,” not on the basis of a process or procedure in which the Church whose action is in question participates in any way, other than to the extent it has representatives on the ACC (from which it could already be barred) and a primate at the Primates’ Meeting (from which its primate could have been excluded). (See “Consequences Prior to Decision” below.)
Agreeing to an undefined, unspecified process in which the decision-making bodies have full discretion to act in any manner they deem best–not only as to the process but as to the standard and burden of proof, information considered, and all other aspects of the dispute resolution system–is what the covenant contemplates. In the words of the rule of law, there is no procedural due process and no substantive due process guaranteed by the covenant. The out- come is to be trusted and respected based on the persons/bodies making the decisions rather than a system based on how the decision is made.
Ease of initiating and continuing the process
As with the Appendix, the only threshold that must be met in order for the dispute resolution process to begin is that a Church or Instrument of Communion claims that a Church’s action or decision may be “incompatible with the Covenant.” The covenant says “where a shared mind has not been reached” the matter “shall” be referred to the Standing Committee. The covenant doesn’t say who decides whether there is a “shared mind” such that referral to the Standing Committee is mandated. The covenant does suggest the Standing Committee can decide to take no action on the matter other than to “make every effort to facilitate agreement.” That is one area in which Section Four constitutes an improvement over the procedures of the Appendix.
Consequences prior to decision
The potential consequences for the Church whose actions are being questioned are severe even before the process is completed. The Standing Committee may request the Church to defer a controversial action and if it does not, the Standing Committee can recommend to any Instrument of Communion that the Church be suspended or its participation limited in an Instrument until the completion of the process. Thus, prior to any determination on the merits, a Church could be prohibited from participating in the Anglican Consultative Council, its bishops could be excluded from a Lambeth Conference or its Primate barred from participating in the Primates’ Meeting. There is no requirement that the Church in question be consulted on this issue, and it has no right to be heard.
Time Line and Implications for the polity of the Episcopal Church
Unlike the Appendix, the final covenant contains no time line for the dispute resolution process. It does contemplate that the Primates’ Meeting and Anglican Consultative Council would take action based on the recommendations of the Standing Committee. A Primates’ Meeting can be called at any time. The Anglican Consultative Council meets about once every three years. General Convention meets every three years. Executive Council meets every three months. It is likely that any controversial decision taken by the Episcopal Church would have been taken by our General Convention, and that only the General Convention could respond. We have already seen examples of the Instruments of Communion requesting bodies of the Episcopal Church, specifically the House of Bishops, to take actions in response to Anglican Communion concerns that the body is not authorized to take.
Conclusion
Serious attention needs to be paid to the enforcement provisions of the covenant because they are based not on procedural and substantive due process—the rule of law—but on the discretion, one is tempted to say whim, of the Standing Committee.
Sally Johnson is chancellor to the President of the House of Deputies and a member of her Council of Advice. She is an eight-time deputy to General Convention from the Diocese of Minnesota.