The Anglican Covenant and Adoption by “other Churches”

Was there an effort to pull the life preserver out of reach of dissenting TEC dioceses?

  There has been considerable critical discussion of the composition and role of the “Standing Committee of the Anglican Communion” in connection with the Anglican Covenant that is now out for consideration by the Provinces of the Anglican Communion.[1]  The subject taken up here is related but different – the evolution of the “other Church adoption” provision of the Covenant, found in Section 4.1.5.  The Covenant text provides that the Churches that are invited to adopt it in the first instance are the current member Churches of the Anglican Communion.  (See Section 4.1.4.)  Section 4.1.5 makes provision for “other Churches” – Churches other than the currently recognized Churches of the Anglican Communion – to be invited to adopt the Covenant as well.

  The significance of other Church adoption has largely been seen in terms of the potential for adoption by dioceses within Provinces which do not adopt, for example by dioceses within The Episcopal Church, and by newly organized Churches such as the Anglican Church in North America.  Some disappointment among people to whom these possibilities are important accompanied the release of the final Covenant text in December 2009.  The disappointment stemmed from a raising of the bar for such adoptions to occur and an indication that there would be a delay of over two years before any invitations for other Churches to adopt might even be issued. [2]  It will be argued below that the changes to Section 4.1.5 that may stand in the way of prompt use of this provision were neither compelled by nor reflective of more than a small minority sentiment expressed in the comments received from the member Churches of the Communion.

  First, the nature of the changes that raised the bar should be stated more specifically.  In the April 2009 Ridley Cambridge Draft (RCD), Section 4.1.5 provided simply that it would be open to other Churches to adopt the Covenant.  It went on to state that adoption would not bring any right of recognition by, or membership in, the Instruments of Communion, but that adoption of the Covenant could be accompanied by a request for such recognition and membership.  No procedures or formalities were prescribed for the process of adoption itself.  The result was that, notwithstanding that adoption would not itself result in membership in the Instruments of Communion, it would offer the opportunity to make a covenantal undertaking pursuant to a Communion process, and to be able to do so expeditiously.  Support for allowing a diocese to be a Covenant signatory where its Province was unwilling to make the requisite commitment was not limited to minorities within TEC but also found expression, for example, in remarks to the February 2009 General Synod of the Church of England by the Bishop of Winchester, Michael Scott-Joynt, who supported providing anxious dioceses within TEC “the lifeline of remaining recognizably Anglican” even if TEC as a Province chose another course. [3]

  In the final text revised by the Covenant Working Group and approved by the Standing Committee of the Anglican Consultative Council (ACC) in December 2009, Section 4.1.5 was changed to contemplate that other Church adoption would be by invitation from the Instruments of Communion and that adoption would be by the same procedures set out by the Anglican Consultative Council for the amendment of its schedule of membership.  The idea that there would be a two-plus year delay before invitations would be considered was not contained in the Covenant text itself but in a December 18, 2009 letter from Canon Kenneth Kearon.  Canon Kearon’s letter attributed the decision in favor of delay to the ACC’s Standing Committee, even though under the revised Covenant text such invitations are the prerogative of the Instruments of Communion, not the Standing Committee.   The combination of a completely new gatekeeping function and a built-in delay meant that the lifeline referred to by the Bishop of Winchester, although not completely removed, was pulled away from near-term reach.[4]

  In discussing the desirability of having a provision that expressly allows for expeditious adoption by other Churches, we are not considering here the case that can be made that under TEC’s constitutional polity it is the dioceses that have the inherent right to determine whether or not to commit to the Covenant (noting that under Section 4.1.4, adoption by a member Church is to be in accordance with its own constitutional procedures). [5] There is no indication that the decisions by the Working Group and Standing Committee to change Section 4.1.5 were made in reliance on any assumption that TEC dioceses (for example) could act under Section 4.1.4, and we wish here to assess the changes on a basis that does not make such an assumption either.

  The story of the action at the ACC’s May 2009 meeting in Jamaica (ACC-14) that resulted in Section 4 of the Covenant text being returned to the Provinces for further comment has been recounted before and will not be dwelt upon at length here.  Suffice it to say that there was substantial confusion arising from multiple attempts by a minority of members to derail Section 4, resulting in doubt as to whether most of the members understood what they were actually voting on when they narrowly passed an amendment that was interpreted to open Section 4 of the Covenant to revision. [6]  Compounding the confusion were specific failures to follow the Council’s own written procedures pertaining to debate on motions before the Council, which are in accord with accepted parliamentary practice. [7]

  Even under the view of the proceedings taken by the ACC bureaucracy, only a small majority (51%) of ACC members voted in favor of the resolution that was regarded as calling for Section 4 to be returned to the Provinces for additional comment.  This resolution requested appointment by the Archbishop of Canterbury of a “small working group to consider and consult with the Provinces on Section 4 and its possible revision, and to report to the next meeting of the Standing Committee.” [8]  The question then may be asked:  Putting aside whether the process was properly authorized, what were the results of the consultation and revision process, particularly with respect to Section 4.1.5, and were the changes that were made to Section 4.1.5 warranted by the comments received from the member Churches? [9]
 

  Out of 38 national Churches (34 Provinces and 4 United Churches),[10] 17 provided no written comments at all.  Of the Churches that commented, five (the Churches in Ireland, Japan, Papua New Guinea, South Africa, and Tanzania) expressed support for the entirety of Section 4 of the April Ridley Cambridge Draft.   Since it seems reasonable to assume that those not submitting written comments on Section 4 were satisfied with it as it stood, adding these five Churches to the 17 that did not make written submissions yields a minimum support level of 58% before even considering the nature of the remaining comments.  Without more, this is substantial evidence in support of the view that the confusion and failure to follow the ACC’s own rules and procedures yielded a result to return Section 4 to the Provinces that ran counter to actual sentiment within the member Churches. 

  Starting with this base of 22 Churches, we find that another three Churches (those in North India, the Southern Cone and Wales) commented or requested clarification only on issues not having to do with the “other Church” adoption provisions of Section 4.1.5.  This places the level of “non-objection” to Section 4.1.5 as it existed in the April 2009 RCD at a minimum of 66%, before considering the comments that deal specifically with Section 4.1.5.

  The comments that deal specifically with Section 4.1.5 can be grouped into those that comment adversely on the language of the RCD, either by suggesting changes or otherwise expressing a negative view of it, those that comment positively and those that merely raise questions or suggest clarification.  Those expressing a negative view include the Churches in Aotearoa, New Zealand and Polynesia (stating, for example, that allowing individual churches to adopt where the province does not has the potential to create strife and confusion), Australia (viewing other Church adoption as directed to ecumenical dialogue rather than internal relationships within the Communion) and Brazil (stating that other Church adoption raises doubts about “schismatic Anglican churches that have broken communion within existing Provinces” and suggesting “disfiguration of Anglicanism” as a possible outcome).  The United States Episcopal Church also seems to belong in this category, because although some of its comments seem only to raise questions,[11] TEC also expressed the view that if there were to be a body that “determined membership or implementation of a covenant” it should be exclusively the role of the Anglican Consultative Council.  The comments of the Scottish Episcopal Church also sought clarification as to “who (Diocese or Province) would sign the Covenant” and as to “the status of dioceses or congregations within the Scottish Episcopal Church who find themselves at odds with a decision by the Scottish Episcopal Church regarding the acceptance or otherwise of the Covenant.”  Although the comments from Scotland could be viewed as neutral as to the text of Section 4.1.5, the comments also expressed a general feeling that Section 4 is unclear and ambiguous and could “even lead to, and enshrine schism” and therefore it might be reasonable to classify Scotland in the negative category.  The comments from the Church of the Province of the Indian Ocean (assuming I follow the French correctly) propose that the request for adoption by other Churches should be accompanied by a request to the Instruments for recognition and membership and action on both should be taken together in accordance with each Instrument’s procedures.  Although they do not oppose other Church adoption, they would appear to place an effort to adopt on the same track as an application for recognition and membership.  If we add TEC, Scotland and the Indian Ocean to New Zealand, Australia and Brazil, there are six Churches to be classified as viewing Section 4.1.5 of the April RCD negatively, at least in some respects.  On a percentage basis, this is about 16% of the 38 Churches considered.     

  Even this 16% figure exaggerates the degree of opposition on the basis of the provincial commentary the Working Group actually had before it, because the responses from Brazil and the Indian Ocean were not received until after the Working Group had met. [12]  On this basis, the Working Group had before it when it did its work negative responses from about 10.5% of the 38 member Churches.  

 

  The Churches commenting positively on Section 4.1.5 would include Canada (suggesting that only the first sentence remain, i.e., “It shall be open to other Churches to adopt the Covenant” [13]), England (limiting other Church adoption to those in the Anglican tradition, specifically including dioceses, and providing that adoption constitutes a request to the Instruments for recognition and membership), South East Asia (discussing unspecified proposed amendments to Section 4.1.5 and concluding that the section should stand as proposed in April) and Uganda (insisting that Section 4.1.5 needed to remain unaltered).  The Churches raising questions about Section 4.1.5 or suggesting clarification in a seemingly neutral manner include Burundi (suggesting the need for clarification as to the circumstances when dioceses may sign when a province does not), Jerusalem and the Middle East (asking what is the meaning of the word “Church” when referring other than to a Province [14]) and the West Indies (expressing the concern that further clarification of “other Church” adoption would be useful).

  In light of the comments, it is instructive to examine the Covenant Working Group’s rationale for the changes it made to Section 4.1.5.  In their commentary on the Revisions to Section 4,[15] they said the following:

In response to the question, ‘what happens if Churches other than current member Churches of the Anglican Consultative Council wish to adopt the Covenant?’ the Working Group was concerned that due process was needed. The procedures set out in the Constitution of the Anglican Consultative Council for amendment of its Schedule of Membership provide a suitable course of deliberation and consultation with the Anglican Consultative Council and the Primates’ Meeting before an invitation to consider adoption of the Covenant by any such Church is agreed upon. The Working Group incorporated these principles in Section 4.1.5.

The Working Group concluded that “due process was needed.”  But there is no showing of how the April Ridley Cambridge draft was lacking in due process.  It prescribed a different process, certainly, but what constitutes due process cannot be determined in the abstract but only by reference to some understanding of rights to be protected or purposes sought to be achieved.  A principal feature of Section 4.1.5 in the RCD was that it made clear that the process for recognition and membership in the Instruments was not changed.  Adoption of the Covenant stands separately and it is hard to see how a more flexible and expeditious procedure for other Church adoption, especially when there is a need such as the “lifeline” objective identified by the Bishop of Winchester, compromises due process.  If the operative provisions of the Covenant are examined, including the rights and responsibilities assigned, there does not appear to be a risk associated with a Church’s making a covenant with parties that may include some not initially named.  If there were thought to be such a risk, it appears it was not one identified by the commenters.  It would have been reasonable for the Working Group to have incorporated changes such as the one suggested in comments by The Church of England to restrict other Church adoption to Churches (including dioceses) in the Anglican tradition, because it could be anticipated that such a change would be noncontroversial.  That cannot be said about the changes that were made, and the Working Group and Standing Committee must surely have known this.

  The new process incorporated in Section 4.1.5 as revised by the Working Group provides that “The Instruments of Communion may invite other Churches to adopt the Covenant using the same procedures as set out by the Anglican Consultative Council for the amendment of its schedule of membership.”  To what activity does the “using the same procedures” requirement apply?  The natural reading is that it relates to the procedure to adopt rather than to be invited to adopt, just as the Constitutional procedures for amending the schedule lead to being added to it, not being invited to do so.  But the Working Group’s commentary states otherwise, i.e., that the procedures for ACC membership must be followed prior to issuance of an invitation to an “other Church” even to consider adoption.  One can ask what could be the objective of such an interpretation other than delay. 

  The problems associated with the Standing Committee of the ACC assuming for itself the role of “Standing Committee of the Anglican Communion” have been dealt with in detail elsewhere. [16]  It is worthwhile to emphasize here that if the “Standing Committee of the Anglican Communion” is identified with the existing Standing Committee of the ACC, whether the role is performed by the Standing Committee or by the ACC itself,[17] the changes made to Section 4.1.5 give the ACC a gatekeeping role with respect to other Church adoption.  It is true that adoption under the revised procedures would also require the assent of two-thirds of the Primates, but it is the role of the ACC that seems to present the greater concern, particularly in light of the proceedings at ACC-14.  Even if the changes originated with the Working Group, it seems inappropriate for the Standing Committee to have approved changes it understood to elevate its own role in such a material way without a clear demonstration of support from the member Churches.

  In the introductory portion of its commentary on the revisions to Section 4, the Working Group expressed the intention to observe a principle of minimal revision and to maintain consistency with the work that had already achieved a wide measure of support.  They also said the changes they incorporated were in faithfulness to the provincial responses.  But following those statements, they said:

Where a point seemed to be particularly strongly and well made, or if it was made by a range of responses, the Group gave full consideration to how the text could be amended to meet that point.

That is, if the Working Group considered that a point was “particularly strongly and well made” it would be incorporated even if not included in “a range of responses.”  Which Church’s comments can be read to support the view that the ACC should be a gatekeeper for other Church adoption?  That of TEC, whose comments stated, “If there were to be a body that determined membership and implementation of a covenant, deputies and deputations felt that should be exclusively the role of the Anglican Consultative Council.”[18]  That under the procedure adopted the Primates would also serve a gatekeeping role is not particularly relevant because TEC’s concerns would have been the ability to prevent adoptions by its dioceses, and the ACC alone could do that.  Nor is it an answer to say that the ACC’s gatekeeping function has been delegated to its Standing Committee, expanded to include some Primates as a minority of its members, because ACC members are still a numeric majority and (contrary to what has been suggested), the Committee’s responsibilities are to the ACC and not the Primates.  (For this and other reasons, the identification of the Standing Committee of the Anglican Communion with the existing Standing Committee of the ACC is not an assumption that should be accepted.)

  It is hard to escape the strong suspicion that the changes to Section 4.1.5 and the accompanying statements as to how it would be applied were made in deference to TEC’s wishes, especially given the strong likelihood that there would soon occur a demonstration of TEC’s unwillingness to adhere to Covenant principles that would make the case for the ability of dioceses to adopt more compelling.  Indeed by the time the Standing Committee met on December 15-18 and acted to approve the revised Covenant text, the Los Angeles diocese had already acted to elect Canon Mary Glasspool as suffragan bishop.  Knowing what was likely to occur, it was advantageous for TEC to have the bar to other Church adoption raised as high as possible.

  It may be hoped that covenanting Churches will take appropriate action to put the lifeline back in reach of those in need of it.

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[1]  See, e.g., Christopher Seitz, Philip Turner, Ephraim Radner and Mark McCall, The Anglican Communion Covenant: Where Do We Go From Here? (Anglican Communion Institute, Inc., January 31, 2010), http://www.anglicancommunioninstitute.com/2010/01/the-anglican-communion-covenant-where-do-we-go-from-here/; Stephen Noll, Communion Governance: The Role and Future of the Historic Episcopate and the Anglican Communion Covenant (American Anglican Council, February 25, 2010), http://www.americananglican.org/assets/News-and-Commentary-Files/2010/03-2010/COMMUNION-GOVERNANCE.pdf.

[2]  The indication of a two-plus year delay appeared in a statement accompanying the release of the final text, mentioned below.

[3]  Links to the report under discussion and audio of the session are at http://www.cofe.anglican.org/news/gsfeb120209am.html.  The Bishop of Winchester’s remarks were transcribed by blog commenter Pageantmaster at http://www.kendallharmon.net/t19/index.php/t19/article/20339/#335834.  The Bishop expressed this view while recognizing the current legal position that in the Church of England an individual diocese would not be able to sign the Covenant.  The view that dioceses should be able to sign the Covenant (where permitted by provincial law) in furtherance of the objective of healing both historic and more recent fractures within global Anglicanism was also expressed in the comments of the Church of England on Section 4.  Church of England Proposals for the Revision of Section 4 of the Ridley Cambridge Draft of the Anglican Covenant, http://www.anglicancommunion.org/commission/covenant/docs/ridley_church_of_england.pdf.

[4]  In his December 17, 2009 video message, Archbishop Williams stated that the Covenant text makes it clear that “at some point” it would be open for adoption by other Ecclesial bodies, and that in the meantime anyone who wished could affirm its principles.  But anyone can affirm whatever principles they want whether invited to do so or not.  Without minimizing the helpfulness of these and earlier remarks of Dr. Williams, what is lost by the change is the ability to proceed expeditiously to adopt the Covenant through a formal process, conceived within the Communion, which expressly allows a contemporaneous application for full recognition and membership.

[5]  See Christopher Seitz, Philip Turner, Ephraim Radner and Mark McCall, Communion Partner Dioceses and The Anglican Covenant (Anglican Communion Institute, Inc., September 8, 2009), http://www.anglicancommunioninstitute.com/2009/09/communion-partner-dioceses-and-the-anglican-covenant/, and Mark McCall, TEC Polity, The Civil Law and the Anglican Covenant  (Anglican Communion Institute, Inc., October 19, 2009), http://www.anglicancommunioninstitute.com/2009/10/tec-polity-the-civil-law-and-the-anglican-covenant/.

[6]  See ACC-14: Did the Members Know What They Were Voting On?” (Anglican Communion Institute, Inc., May 28, 2009), http://www.anglicancommunioninstitute.com/2009/05/acc-14-did-the-members-know-what-they-were-voting-on/.

[7]  See Mike Watson and Mark McCall, ACC-14: Did the Clauses on Section 4 Ever Pass? (Anglican Communion Institute, Inc., May 28, 2009), http://www.anglicancommunioninstitute.com/2009/05/acc-14-did-the-clauses-on-section-4-ever-pass/.

[8]  According to the resolution, the Archbishop of Canterbury’s appointments were to be made “in consultation with the Secretary General.”  The appointees were:  The Most Rev’d Dr. John Neill (Chair) (The Church of Ireland); The Most Rev’d Dr. John Chew (Church of the Province of South East Asia); Dr. Eileen Scully (Anglican Church of Canada); and The Rt. Rev’d Dr. Gregory Cameron (The Church in Wales).  Classified as staff were; The Rev’d Canon Joanna Udal (Lambeth Palace); and Mr. Neil Vigers (ACO).  Not listed in the initial announcement but listed in the group’s final commentary as staff is the Rev’d Canon Dr Alyson Barnett-Cowan (ACO).

[9]  The written comment submissions may be found at http://www.anglicancommunion.org/commission/covenant/responses/index.cfm.

[10]  The term Provinces is sometimes used to refer to all the national Churches, including those that are technically United Churches rather than Provinces.

[11]  TEC found ambiguity regarding the meaning of “Church” and especially “other Churches” and asked if a province in one geographic area chose not to sign, could a new province in that area do so.

[12]  The lateness of these responses is mentioned in the material linked in footnote 9.

[13]  The suggestion from the Canadian church to delete the remaining language of RCD Section 4.1.5 appears to have stemmed largely from a misconception that Section 4.1.5 could be read to apply to existing Provinces that became Covenant signatories so as to require them to reapply for recognition by the Instruments, which was not the case.

[14]  Although the questions proposed in the Provincial comments appear to be expressed neutrally, the submitter of the comments, Bishop Mouneer Hanna Anis, added his own comments in the capacity of Bishop of Egypt.  Addressing the situation in which a Province refuses to sign but dioceses within the Province wish to adopt the Covenant, Bishop Mouneer stated his belief that it would be unfair to ignore the request of such dioceses.  The comments from the Province of Jerusalem and the Middle East are accompanied by a note expressing the apologies of the Anglican Communion Office that although emailed prior to the Working Group’s meeting, due to technical problems the comments were not seen until after the Working Party had met.

[15]  The Working Group’s commentary may be accessed at http://www.anglicancommunion.org/commission/covenant/final/commentary.cfm.

[16]  See the papers cited in footnote 1.

[17]  Under a change to the ACC’s constitution finalized only recently, it is now the Standing Committee rather than the full Council that acts in connection with changes to the ACC’s schedule of membership.

[18]   It is difficult to see this comment as meeting the Working Group’s criterion of being “particularly strong and well made.”  It is worth contrasting this position taken on behalf of TEC with the comments of the Church of England on the St. Andrew’s Draft of the Covenant text expressing the belief that the Anglican Consultative Council in its present form is not capable of fulfilling the responsibility that would be given to it under the Covenant text.  See A Covenant for the Anglican Communion – Comments from the Church of England, paragraph 28 (February 2009), http://www.anglicancommunion.org/commission/covenant/docs/06_england.pdf.