The Rev. Canon Professor Christopher Seitz
The Rev. Dr. Philip Turner
The Rev. Dr. Ephraim Radner
Mark McCall, Esq.
Michael Watson, Esq.

The crises in the Anglican Communion in recent years have revealed two distinct problems confronting the Communion, one theological and one structural. The two halves of faith and order. The theological problem is whether the Communion has theological coherence on major questions of faith and practice. Slowly over the last decade and a half an affirmative answer to this question has been evolving. In particular, on the presenting crisis of human sexuality the Communion does have a common mind that has been expressed repeatedly by all four Instruments. The extent to which this has happened is reflected in the report of the Joint Standing Committee in late 2007 after the meeting of TEC’s House of Bishops in New Orleans:

The Communion seems to be converging around a position which says that while it is inappropriate to proceed to public Rites of Blessing of same-sex unions and to the consecration of bishops who are living in sexual relationships outside of Christian marriage, we need to take seriously our ministry to gay and lesbian people inside the Church and the ending of discrimination, persecution and violence against them. Here, The Episcopal Church and the Instruments of Communion speak with one voice.

TEC’s Presiding Bishop concurred in that report, but she has since served as the chief consecrator of Mary Glasspool and TEC’s General Convention has authorized the development of liturgies for public rites of blessing.

The extent to which the theological question has been answered is also reflected in the steps already taken by the Archbishop of Canterbury to begin removing TEC representatives from Communion bodies responsible for faith and order and the acknowledgment by the Secretary General that TEC does not “share the faith and order of the vast majority of the Anglican Communion.”

Also evolving, albeit more slowly and less certainly, are solutions to the structural problem: whether the Communion has the structural coherence to deal with these kinds of crises. A number of well known studies have addressed this issue, including the Virginia Report, the Windsor Report and the Report of the Windsor Continuation Group. But the Communion response has not been limited to the publication of reports. There have been two concrete responses to the structural problem and the recommendations in the various studies, and both have come to fruition in the past year. One is the Anglican Communion Covenant, now under consideration by the member churches. The Covenant was under development for several years in a largely transparent process. Three drafts were published and open to public debate and comment. Regardless of one’s position on the Covenant, there can be no question that its contents are known and have been scrutinized by all interested parties.

The second response to the structural problem is the constitutional reform of the Anglican Consultative Council. This response has also been under development for several years and is motivated both by purely legal issues and by the recognition of needed institutional reform, but unlike the Covenant the constitutional reform of the ACC has largely proceeded outside of public view. This feature has been compounded by the fact that many of the issues involve technical legal matters that have implications that are not readily apparent and, in some cases, were not even applicable until late in the process. This has made informed consideration by the member churches and Instruments difficult, if not impossible.

This process is now nearing completion. On July 12, 2010, a certificate of incorporation was issued for a new UK company, the Anglican Consultative Council. Accompanying the certificate were the Memorandum and Articles of Association of this new company. These documents were made public by the Registrar of Companies for England and Wales although they were not disclosed publicly by the Anglican Communion Office until July 24. With the registration of this new company with the UK Charity Commission, the transformation of the ACC is now complete. The ACC is now a company regulated under both UK Companies and Charities laws.

We will examine below the provisions of the ACC’s new constitution, its Articles of Association, and the implications these Articles have for the structural problems of the Communion. We will also consider the extent to which the new ACC constitution presents a future for the Communion compatible with that of the Covenant. In summary, our conclusions are as follows:

• By making the ACC an English company, the new constitution subjects the ACC, one of the Communion’s Instruments, fully to UK and applicable EU law, including equalities legislation that the Church of England itself has resisted.

• The new constitution reverses the historic relationship between the ACC and its Standing Committee, making the Standing Committee the primary legal entity and giving it greater authority than the Council as a whole.

• The new constitution infringes on the traditional authority of the Archbishop of Canterbury and the Primates’ Meeting, which are separate and independent Instruments of the Communion that do not derive their authority from the ACC constitution.

• The new constitution reduces the role of the member churches in the governance of the ACC.

• In these ways, the new constitution is inconsistent, both in vision and in detail, with the Covenant.

Because this document has been held outside of public view until very recently, we write without the benefit of comment from English lawyers. If correction on that account is in order, we expect it will be voiced. Many things, however, seem straightforward enough and it is important that the nature and extent of the changes brought about begin to be appreciated.

1. The ACC Is a Corporation Governed by UK and EU Law

The starting point in a review of the new constitution is to note that the ACC is now an English company, subject to UK and EU law like all other English companies. A certificate of incorporation has been issued in the name of “The Anglican Consultative Council” and the new Articles make clear that this new company is now governed by the Companies Act 2006. We will consider below to what extent the new legal entity is the same body as that traditionally understood as the ACC. For the present, however, it is important to recognize the significance of the fact that the ACC is now a corporation governed by UK and EU law.

The initial Lambeth Conference resolution calling for the establishment of the ACC and proposing its initial constitution (1968 Res. 69) did not specify any legal structure or entity for the ACC. It was just a body to be defined by its constitution. As such, the ACC was what is generally regarded as a voluntary association. Traditionally, such associations were not recognized by the law as legal entities distinct from their members. The essence of a corporation, on the other hand, is that it has a legal personality distinct from its members or shareholders and its legal rights and duties are determined not solely by agreement of its members but by the governing law.

At its second meeting in 1973, the ACC approved the establishment of a limited legal structure (a trust) under UK law, but its specific purpose was to hold property located in the UK and the resolution indicated clearly that the ACC itself and this trust were not identical, but distinct entities — the trust holds property “on behalf of” the Council. Resolution 2:33 (1973):

Legal Status

1. The Council approves that a Trust be set up in the United Kingdom the object of which shall be to advance the Christian religion in accordance with the terms of the Constitution of the Anglican Consultative Council which may hold on behalf of the Council all property and funds situated in the United Kingdom.

2. The Council delegates full responsibility to the Standing Committee to approve on its behalf the final form of the said Trust and to appoint the necessary Trustees.

In 1999, the ACC began the process of changing this status. Resolution 11:6 provided in part:

That the Standing Committee consider, and if it thinks fit, adopt an appropriate legal structure for the ongoing work of the council within the framework of a limited company in accordance with legal advice and any directions of the charity commissioners for England and Wales, but so far as possible in all other respects in accordance with the existing constitutional arrangements.

Although this resolution only called for “an appropriate legal structure” “within the framework of a limited company” and did not specify that the ACC itself would be incorporated, it was clear by ACC-13 in 2005 that the intent was for the ACC itself to become a charitable company governed by UK law. We are now at the endpoint of this process, and the Articles of Association forming that company are the new constitution of the ACC.

We do not question the underlying legal advice that the appropriate legal structure for the entity responsible for managing the Communion’s UK assets is a company limited by guarantee. We are not at all persuaded, however, that this legal entity should be one of the Communion Instruments itself and that the fiduciaries charged with overseeing these charitable activities should be the same as those comprising one of the bodies responsible for faith and order in the Communion. Whatever the complex legal issues may have been, the practical result for the Communion of this legal transformation of the ACC will be to return and consolidate legal and ecclesiastical power in London and to insure that no important decision can be made without consulting UK lawyers and complying with UK law.

The potential for resultant legal problems is obvious. Some charities affiliated with other churches, both in the UK and elsewhere, are either ceasing operations or converting to secular control — hardly an option for the ACC — to avoid regulations restrictive of religious freedom. And one can readily contemplate future mandates on UK companies designed to enforce UK policy objectives in other countries, including gay rights, e.g., embargoes on transactions with countries (most of the Communion) not complying with European equality regulations. It is incongruous that in the last year the bishops of the Church of England were voting in the House of Lords against proposed equalities legislation because it would restrict religious liberty even as steps were being taken to incorporate the ACC under UK law and possibly subject one of the Communion’s Instruments to that same legislation. Significantly, the new Articles contain no “ethos statement” or statement of required standards of conduct or faith for ACC officials, and Article 6.5.2 already refers to the possibility that Standing Committee members might have civil partners.

2. The ACC Is Now Defined Legally by Reference to the Standing Committee with the Full Council Playing a Secondary Role

Under the old ACC constitution, the powers of the Standing Committee were derivative of those of the Council itself. The Council consisted of its members, who were appointed directly by the member churches. The Standing Committee had the power to act for the Council between meetings of the full Council and to execute matters referred to it by the Council. The nature of the Standing Committee’s legal role as derivative of (and lesser than) the full council is shown by Article 8 of the former constitution:

The Standing Committee may exercise all powers of the Council as are not by this Constitution required to be done specifically by the Council, and in particular may borrow money and mortgage or charge the Council assets.

Under the former constitution, the members of the Standing Committee also served as trustees of the Council for charity law purposes.

The ACC’s new Articles of Association essentially reverse this relationship. It is the Standing Committee that has primary management authority and it is the full Council that has a lesser and secondary role.

By adopting the corporate form, the ACC has fundamentally altered the foundation of its governance. The principles of governance of an unincorporated association are those chosen by the members themselves. Indeed, as already noted, traditionally the law has not recognized such an association as having a legal personality apart from its members. Corporations, on the other hand, are created by the law and their governance is prescribed in the first instance by the corporate law. The ACC company was formed and got its legal personality only when a Certificate of Incorporation for company number 07311767 was issued by the Registrar of Companies for England and Wales.

Corporations are juridical persons, entities created by the law. As such, the corporate law defines in detail the fundamental governance of the corporate entity, including who the members are, how votes are to be taken, how meetings are called and who is responsible for the management of the company. Choices as to these matters are permitted, but are subject to the parameters established by company law. For English companies, the most recent corporate law is found in the Companies Act 2006, a 700 page statute that specifies the basic rules of company life. In general, English company law specifies that

• non-written resolutions can only be passed in “general meetings” of the members, including the familiar “annual general meetings” required of public companies and often held by private companies;

• who must be given notice of such meetings and how notice is to be given;

• what kind of majorities are required to pass “ordinary resolutions” and “special resolutions” and what constitutes each; and

• how members can designate others, “proxies,” to vote on their behalf.

These concepts are well known to corporate lawyers, but may be less familiar to ordinary Anglicans around the Communion. The ACC’s new Articles explicitly adopt the meanings of terms defined in the Companies Act 2006.

Applying these concepts to the ACC’s Articles, we see that the most important provision for understanding the ACC’s new structure is Article 7.5:

The Trustee-Members shall constitute the membership body of the Council for the purposes of the Companies Acts and as Charity trustees they shall have responsibility for management of the Council’s property and funds.

Thus, the legal membership of the company consists of the Trustee-Members. And they are defined in the definitions of Article 1 as follows:

Trustee-Members means the individual members for the time being of the Standing Committee of the Council (and “Trustee-Member” or “Trustee-Members” has a corresponding meaning), the Trustee-Members being also the members of the company for the purposes of the Companies Acts….

Put simply, the membership body for legal purposes is the Standing Committee, not the full Council. This is reflected throughout the new articles in other more technical provisions. For example, Articles 12, 13 and 16 make clear that it is the meeting of the Standing Committee that constitutes the “general meeting” and “annual general meeting” of all members specified in the Companies Acts as the meetings at which the company can pass resolutions. And Article 3.1 specifies that it is the Standing Committee members whose personal liability is limited. If the company had other members, their liability would be unlimited since they are not included in the limitation in this article.

This constitutes a significant change in structure from that of the former constitution. Under the old constitution, the members of the ACC were the persons directly elected by the member churches. And the former constitution provided for “meetings of the Council” at intervals of every two or three years, and “meetings of the Council” meant meetings of the members elected by the member churches. What is the role of these “members” under the new corporate structure?

In the new Articles, the persons elected by the member churches are still identified as “Members” but this is largely definitional and of limited effect since the Articles also specify that for legal purposes–that is, for purposes of the Companies Act under which the Council is now organized–the members of the Council are now the members of the Standing Committee. And the meetings of the full Council are designated under the new Articles as “Plenary Sessions of the Council” and are said to be “in addition to” the general meetings and annual general meetings of the Standing Committee, the latter being the meetings of members recognized under the new Companies Act structure. The Plenary Session is in fact an extra-corporate body whose primary legal role is the exercise of a right, provided for in the Articles but not mandated by company law, to elect the members and trustees of the company — the Standing Committee — and to advise the company on certain, but not all, matters that the Standing Committee has the legal authority to do.

Does any of this matter in practice or is it mere legal formality? In fact, it has real practical consequences. One important feature is the relative scope of the authority of the Standing Committee and Plenary Session. As already noted, in the past the authority of the Standing Committee was derivative of, but less than, that of the full Council. The Standing Committee could do much of what the full Council could do, but nothing more, except to the extent they were acting solely in their capacities as trustees of a charity. But under the new Articles, the Plenary Sessions have a separate limit on their authority that is not applicable to the Standing Committee. The “Objects” or purposes of the ACC have been revised in the new Articles to include three objects: to advance the Christian religion; to promote the unity of the Anglican Communion; and to promote the purposes of the Anglican Communion. The Standing Committee, as the legal company, is authorized by law to pursue all of these objects. But the authority of the Plenary Sessions is limited to the contractual rights granted to them in the Articles. And under Article 16.1 they can only meet “to promote the unity of the Anglican Communion” and can only consider other matters “in that context.” The Standing Committee has no such restriction on its authority, i.e., it need not consider matters only in the “context” of unity.

Given the controversies in the Communion and the provisions of Section 4 of the Covenant this becomes a real, not a theoretical, issue. Can the recognition of “relational consequences” that diminishes the role of a member church in some way be considered by the Plenary Session as a matter promoting the unity of the Communion? Or is this something that can only be done by the Standing Committee?

Another important issue that has been the subject of recent controversy is the manner in which amendment of the ACC’s constitution is accomplished, and in particular amendment of the constitutional schedule specifying its membership. The Articles treat amendments to the main body differently from amendments to the membership schedule, but each case requires action by a body other than the Standing Committee. In the case of amendments other than to the membership schedule, Article 27.3 provides for a vote of two-thirds of the plenary members. In the case of the membership schedule, amendment is by the Standing Committee with the consent of two-thirds of the Primates. But the Companies Act mandates that amendment of the articles must be accomplished by a vote of 75% of the full membership of the company, i.e., the Standing Committee. As we understand it, the Companies Act thus imposes an additional requirement to amend the Articles that in effect gives any four members of the Standing Committee a veto over the proposed amendment. In other words, the full Council could vote overwhelmingly to amend the Articles, but the decision could be blocked by a minority faction on the Standing Committee. And this possibility is not merely hypothetical. We know there have been allied blocks on the Standing Committee, we have seen them in action in Jamaica, and ACC officials have publicly bemoaned recent Standing Committee meetings to the point of resignation and extreme frustration (the “worst meeting of my life”).

As noted above, the Plenary Session is not part of the legal membership of the ACC. The plenary members therefore possess no statutory rights as members of the incorporated body, but only those rights granted in the Articles. These rights are contractual in nature; unlike the Standing Committee, the plenary members have no inherent legal authority to manage the ACC. It is important therefore to recognize the extent to which the new Articles restrict the authority of the plenary members even over the Plenary Sessions themselves and transfer significant control over these Plenary Sessions to the Standing Committee. New Article 16.5 now gives the Standing Committee the power to adopt rules governing the conduct of business at the Plenary Sessions. And it is not even clear whether the Plenary Session itself could change such rules even with an overwhelming majority vote and the consent of the ACC President, the Archbishop of Canterbury. The wording of Article 27.2 suggests not. Under the old rules, the Standing Committee had no such role in adopting procedures for meetings other than its own. (Old bylaws 1(c) and 2(b).)

Similarly, Article 8.2.3 now gives the Standing Committee the ability to give directions for the conduct of elections for Standing Committee membership, as well as elections for Chairperson and Vice-chairperson, and Article 27 gives it general authority to adopt rules and guidelines broader than its previous authority, which was limited to the Standing Committee’s own proceedings. (Compare Article 27.1 with old bylaw 2(b).)

Not only are the Plenary Sessions downgraded in importance relative to the old structure and subject to significant control by the Standing Committee, the Standing Committee is given additional ability to influence the proceedings through exercise of the right to appoint up to six members in addition to those elected by the member churches. Under the old constitution, authority to appoint these additional members (previously called co-opted members) was given to the Council itself.

And in addition to exercising all the membership rights, the Standing Committee members, as “Trustees,” also exercise the rights of directors of the company under the Companies Act. As a matter of law, directors have the primary management responsibility for the company.

In short, the reversal in the legal structure making the Standing Committee primary and the full Council secondary is also reflected in specific rules that give the Standing Committee significant control over the Plenary Session — what was formerly thought of as the ACC.

3. The New Articles Infringe on the Prerogatives and Traditional Authority of Other Instruments.

To this point we have looked at the ACC’s new constitutional structure only from the perspective of the ACC itself. The changes in the nature and governance of the ACC are significant and obvious. But the new Articles also take the first steps toward asserting legal control over the other Instruments thereby radically changing the traditional understanding of those Instruments as independent bodies or offices.

The starting point is the definitions section in Article 2, which appears to be an attempt to define and thereby control the membership of the Primates’ Meeting by reference to the ACC’s membership schedule rather than the Primates’ Meeting’s own self-definition:

“Primates” means the principal Archbishop, Bishop, Moderator or Primate of each of the bodies listed under paragraphs 1, 2 and 3 of the Schedule appended to these Articles.

“Primates’ Meeting” means the gathering of the Primates convened time to time by the Archbishop of Canterbury.

This is an important, if technical, point. The former ACC constitution contained a definition of “Primates” identical in substance to this definition but with a qualification that the definition was “for the purposes of this Article,” which was the article on determining ACC membership. But this definition now applies not just when changing the ACC’s own membership but to “these Articles,” and as we will see next, the new Articles purport to regulate, at least in part, some decisions of the Primates’ Meeting.

This attempt to define the Primates is now broadened because the new Articles also purport to define the Primates’ Meeting itself. This definition partly mirrors that used in the Covenant, reflecting the traditional understanding (that the Primates’ Meeting is “convened by” the Archbishop of Canterbury), but there is an important difference. Under the new Articles, the Primates’ Meeting is the “gathering of the Primates” and “Primates” as we have just seen is a defined term that is defined by reference not to the Primates themselves or the Archbishop of Canterbury, but to the ACC membership schedule, which is controlled by the Standing Committee.

Following the traditional practice, the Covenant specifies that it is the Archbishop who “gathers” the “Primates’ Meeting” and there is no qualification on his discretion as to which Primates to gather — no reference to the ACC membership or any other list. Indeed, in the past the Archbishop has not in fact used the ACC list as the basis for gathering the Primates. For example, he has invited the Archbishop of York notwithstanding the fact that he would not be included among those defined by the ACC list. In addition, the Archbishop has not invited the senior bishop from Ceylon despite the fact that the extra-provincial Church of Ceylon was listed on the ACC schedule. And in 2007, the Archbishop made clear that invitations were within his discretion when he announced that “I have decided not to withhold an invitation to Bishop Katharine Jefferts Schori as the elected Primate of the Episcopal Church to attend the forthcoming meeting. I believe it is important that she be given a chance both to hear and to speak and to discuss face to face the problems we are confronting together.”

By attempting to define the Primates’ Meeting as those on the ACC schedule as opposed to those whom the Archbishop of Canterbury chooses to gather, the ACC is encroaching on matters within the domain of two other Instruments.

But the ACC Articles go further. They purport to regulate and control decisions the Primates make about their own leadership. Article 8.2.1 provides:

In electing the Chairman, Vice Chairman and other Trustee-Members [Standing Committee members] the Members and the Primates (as the case may be) shall have regard (particularly in the process of nomination) to the desirability of achieving (so far as practicable) appropriate regional diversity and a balance of representation between clergy and laity and between the genders. (Emphasis added.)

What this article purports to do is impose diversity criteria on the Primates’ election of members to their own standing committee since those members become “Trustee-Members.” Whether these criteria are laudatory is not the issue. It is for the Primates to decide on the qualifications they will consider in electing their standing committee. For example, although they have not yet chosen to do so the Primates might wish to adopt selection criteria that focus on proportional representation or theological coherence with the Communion’s faith and order rather than regional or gender diversity. We hope the Primates will robustly resist these initial efforts to control their decision making.

The new articles further encroach on the historical prerogative of the Archbishop of Canterbury to appoint members of the Communion’s commissions and similar bodies. New Article 5.5 gives the ACC (the Standing Committee) the authority to establish Communion commissions. We have already seen this developing in recent years without any legal authority, but this now formalizes that practice. Will the Standing Committee next claim that the Archbishop cannot appoint such commissions without its consent? It does not bode well that the Standing Committee recently interrogated the Archbishop on decisions taken concerning some of these commissions and the explanation given was that he had conferred with the Secretary General, who possesses no authority in these matters.

As a final example of the ACC’s encroachment on other Instruments under these Articles, we note that the procedures for determining the membership of the Inter-Anglican Finance Committee have been changed to place sole appointing authority in the Standing Committee. Former bylaw 4 provided that the committee would consist of at least five members, of which at least two would be appointed by the Primates’ Meeting and at least three would be appointed by the Council. Now the Standing Committee, not the full Council, is the appointing body for all members, with both the Primatial and non-Primatial members of the finance committee appointed separately from among the members of the Standing Committee. (Articles 14.1 -14.2.) The “at least” language on the number of members is dropped, fixing the size of the committee and ensuring that there will be a majority of non-Primatial members.

In each instance just described, the changes made were small and in some cases technical. But they reflect an assumption that the other Instruments can be governed in some way by the ACC’s Articles and may be claimed as a precedent for that in the future. Given the Standing Committee’s control over these Articles, this is a dangerous precedent for the Communion and its Instruments as traditionally understood.

4. The New Articles Reduce the Influence of the Member Churches on the ACC.

In many ways the reduced influence of the member churches follows from the facts we have already noted. The members elected by the member churches are no longer the legally recognized members of the ACC. But there is one other way in which the influence of the member churches has been reduced. The former requirement that amendments to the constitution be ratified by two-thirds of the member churches has been removed. Amendments now require only a two-thirds vote of one Plenary Session and, under the Companies Act, a 75% vote of the Standing Committee.

It is ironic that one of the legal arguments TEC has made in litigation it instituted against its former dioceses is that its General Convention possesses legal supremacy because it can amend TEC’s constitution. But TEC’s constitution requires that amendments be approved at two successive meetings of the General Convention and that formal notice of the proposed amendment be transmitted to the diocesan conventions between the two votes. And when the vote is taken at the General Convention, it is cast in the House of Deputies by dioceses that have equal representation and vote as a unit in both the clergy and lay orders with each diocese having one vote in each order. This is considered a vote by dioceses by TEC’s own constitutional commentary.

Under the new ACC Articles, however, amendments do not require two readings, are not sent formally to the provincial synods and are not voted on at the Plenary Sessions by member churches as a unit with each church having one vote. They are voted on in one session by the individual members, including the members appointed by the Standing Committee, which gives disproportionate representation to the western churches. This reduces further the input of the member churches in the functioning of the ACC.

5. The Structure of the Communion Reflected in the New ACC Articles Is Not What Was Contemplated In the Covenant.

We have identified above the distinctive features of the transformed ACC. We now must ask to what extent this ACC response to the Communion’s structural problems is compatible with that found in the Covenant finalized only seven months ago?

To start it is helpful to revisit the fundamental principles of our Anglican identity as expressed in Section 3 of the Covenant:

First:

Churches of the Anglican Communion are bound together “not by a central legislative and executive authority, but by mutual loyalty sustained through the common counsel of the bishops in conference” and of the other instruments of Communion. (3.1.2.)

Second:

[Each Church affirms] the central role of bishops as guardians and teachers of faith, as leaders in mission, and as a visible sign of unity, representing the universal Church to the local, and the local Church to the universal and the local Churches to one another. This ministry is exercised personally, collegially and within and for the eucharistic community. (3.1.3.)

Third:

In addition to the many and varied links which sustain our life together, we acknowledge four particular Instruments at the level of the Anglican Communion which express this co-operative service in the life of communion….It is the responsibility of each Instrument to consult with, respond to, and support each other Instrument and the Churches of the Communion. Each Instrument may initiate and commend a process of discernment and a direction for the Communion and its Churches. (3.1.4.)

These principles can be summarized as recognizing that the Anglican Communion (1) is not tied to a single “central authority”; (2) is one in which its bishops play “the central role” in essential areas of leadership; and (3) is led by four distinct Instruments of Communion, each of which “may initiate and commend a process of discernment and a direction for the Communion and its Churches.”

None of this is novel. As the Covenant itself notes in the Introduction:

To covenant together is not intended to change the character of this Anglican expression of Christian faith. Rather, we recognise the importance of renewing in a solemn way our commitment to one another, and to the common understanding of faith and order we have received, so that the bonds of affection which hold us together may be re-affirmed and intensified.

It must be emphasized that the “we” of the Covenant are the member churches of the Anglican Communion that sign the Covenant together with the other churches who may join them in that agreement. The Covenant is their commitment to each other and the historic Instruments of Communion they recognize in their re-affirmation of their common faith and order. The Instruments derive their authority in the Communion not from their own internal legal processes, but from the recognition they receive from the Communion’s churches.

The Covenant thus becomes the foundational document for the Communion. It does not derive its authority from any of the Instruments. Rather the reverse.

One can see at a glance that the new ACC Articles present quite a different vision at key points. They unquestionably establish a “central executive authority.” Indeed, in its recently posted Q&A this is explicit:

The Standing Committee is the executive arm of the Anglican Consultative Council, charged with advancing its work between its three-yearly plenary meetings. It also incorporates the Standing Committee of the Primates’ Meeting, and has responsibility to oversee the implementation of requests from the Lambeth Conference. So, for example, it takes responsibility for organising meetings of the Instruments, and co-ordinates the work of the various Networks and Commissions which serve the Communion in a wide variety of ways. The work on Theological Education came from an initiative of the Primates’ Meeting; the Relief and Development Alliance was a proposal from the Lambeth Conference of 2008.

The ACC Articles, moreover, do not sufficiently acknowledge the central role of bishops and the bishops in conference. The Lambeth Conference of bishops appoints none of the members of the Standing Committee, and it is the ACC that elects the majority of the Committee members. Although the ACC can and does elect bishops from among its members and bishops will always comprise a large part of the Standing Committee, there is no formal recognition of a “central role” for bishops and the stated criteria for appointing Committee members include “a balance of representation between clergy and laity.” In the larger, if now less important, Plenary Session, there is no vote by orders, which would guarantee a special role for bishops, and the membership criteria encourage lay, not episcopal participation.

And as noted, the ACC Articles assert the legal authority to define and regulate in some respects the other Instruments of Communion. The Covenant’s oft-expressed vision is of a Communion in which each Instrument is distinct, co-equal and responsible for its own membership decisions. A possible trajectory of the new ACC Articles, if now only in its earliest stages, is that of a Communion in which all the Instruments are governed by a single legal constitution subject to UK law.

Indeed, a threshold question is whether the new ACC Articles and the Anglican Covenant are even talking about the same Instruments. The Covenant defines the ACC with reference to its former constitution and specifically refers to the membership schedule, indicating it considered the Council to be the body comprised of the members elected by the member churches, not the smaller body comprising the Standing Committee. This accords with the original Lambeth Conference resolution that specified the first constitution of the ACC. It also defined the Council by reference to the members elected by the member churches and said of the Standing Committee only that:

The Council shall appoint a Standing Committee of nine members, which shall include the Chairman and Vice-Chairman of the Council. The Secretary General shall be its Secretary. The Standing Committee shall meet annually. It shall have the right to call advisers.

Is this even the same body as the new English company whose members and directors consist of the Standing Committee only and not those elected directly by the member churches?

Similar questions arise with respect to the committee defined in Section 4 “to monitor the functioning of the Covenant…on behalf of the Instruments.” Among other duties, this committee must be “responsible to the Anglican Consultative Council and the Primates’ Meeting” and “make recommendations as to relational consequences” to “the Instruments of Communion.” The Covenant identified that committee as the “Standing Committee of the Anglican Communion.” In its public materials, the ACC Standing Committee identifies itself correctly as “The Anglican Consultative Council-Standing Committee.” This accords with its legal definition. By its own account, last December it “adopted” the title used in the Covenant of “Standing Committee of the Anglican Communion” but has since thought better of that idea and decided to stick with “‘the Standing Committee,’ as per the new ACC Articles of Association.”

Whatever else can be said of this confusion, one thing is clear: when the Covenant defined a committee to monitor “on behalf of the Instruments,” to “be responsible to” the ACC and the Primates’ Meeting, and to “make recommendations” to the Instruments, it did not contemplate that this role would be filled by a group that constitutes the entire membership and governing body for legal purposes of one of those same Instruments.

6. Conclusion

In light of these developments, we draw the following conclusions:

• It is not appropriate for one of the Communion’s four Instruments to be an English company regulated by UK and EU law like any other UK company. To repeat what we said above, we do not question the need for the proper and efficient management of the Communion’s charitable assets by fiduciaries complying with all relevant laws. We are not convinced, however, that this role should be confused with the historic role of the Instruments of Communion in “the discernment, articulation and exercise of our shared faith and common life and mission” and in particular with the role of the Communion’s Primatial leadership, which bears special responsibility for “doctrinal, moral and pastoral matters that have Communion-wide implications.” (Covenant 3.1.4.)

• We urge the Archbishop of Canterbury and the Primates not to cede their independent authority to the corporate charter of the ACC, but to insist that their authority cannot be infringed by the ACC.

• It is now beyond doubt that the newly transformed and empowered ACC Standing Committee cannot function as the committee required by Section 4 of the Covenant.

• The Covenant remains the only hope for preserving the traditional faith and order of the Anglican Communion. We call upon member churches of the Anglican Communion to adopt the Covenant with all deliberate speed and, having done so, to make proper arrangements for the responsibilities assigned to the Standing Committee of the Anglican Communion in Section 4 to be undertaken by a body that has both the competence and ability to assess threats to the Communion and recommend appropriate action.

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While I appreciate the thoughtfulness of the ACI pronouncements what is generally lacking is any understanding of realpolitik.  The conservative reformers within pecusa are constantly outflanked by the liberals in pecusa and the Anglican Communion.  It is a shame; I know that the ACI and CP folks mean well, but there is a gospel out there and your efforts have consistently come up short with regards to pecusa and the AC.  I don’t say this with anything other than profound disappointment.  The fact that Kearon would say that pecusa does not share the faith and order of the AC should be reason enough to see that nothing that has happened over the last seven-plus years has changed pecusa’s belligerent stance toward the AC nor is pecusa any closer to walking back to the AC.

Tony,

While I appreciate the thoughtfulness of the ACI pronouncements what is generally lacking is any understanding of realpolitik.  The conservative reformers within pecusa are constantly outflanked by the liberals in pecusa and the Anglican Communion.  It is a shame; I know that the ACI and CP folks mean well, but there is a gospel out there and your efforts have consistently come up short with regards to pecusa and the AC.  I don’t say this with anything other than profound disappointment.  The fact that Kearon would say that pecusa does not share the faith and order of the AC should be reason enough to see that nothing that has happened over the last seven-plus years has changed pecusa’s belligerent stance toward the AC nor is pecusa any closer to walking back to the AC.

You’ve made an assertion about the efforts of ACI with regard to the gospel and its proclamation that seems generalized and therefore unconvincing. I think you’ve largely missed the point of this piece, and, it seems, in the larger picture, the theological and political convictions of the work of ACI. Perhaps I am mistaken in this however. Could you provide a deeper analysis, particularly with respect to this piece, as to why you have made the generalized claims you have. Perhaps it would also help if you provided particular examples of what you mean by “there is a gospel out there and your efforts have consistently come up short ...”

Thank you,
Katie

Tony,

If we rely on politics, the conservative cause is lost in TEC.  I don’t believe that is the role of the ACI.  I see Dr. Radner et. al. as prophets in the fashion of Ezekiel - “Whether they hear or refuse to hear (for they are a rebellious house), they shall know that there has been a prophet among them.” (Ezekiel 2:5)

There is great humiliation and kenosis in what those of us who have remained in TEC, while being “loyal to the doctrine, discipline, and worship of Christ as this Church has received them.”  I know that the conservative cause is not going to win in TEC and I doubt it will win at the ACC.  But we are not called to cede the field, but to fight the losing battle for the battle is not ours.  The battle belongs to the Lord.  God will redeem TEC and the structures of the Anglican Communion at a time of His choosing.

YBIC,
Phil Snyder

Phil, rely on politics,no.  Be aware of and act accordingly, yes.  I appreciate the theological work of the ACI and I don’t think anyone in or out of pecusa should cede the field. I am heartened by the recent actions of removing pecusa representatives from councils, but I don’t believe that God will redeem pecusa. So, if not ceding the field means staying and working within pecusa then obviously we have a difference of opinion.  If not ceding the field means evangelizing and discipling people where God has placed us, then let’s work together. Placing so much faith in the covenant and the instruments of unity is misplaced, imo.  I do not believe that the covenant is the answer nor do I put my faith in the instruments of unity.  The battle does belong to the Lord and the ACI and CP are not only fighting the wrong battle - they are losing miserably. Schori and Co. would rather create their own communion than capitulate to the AC.  Whether God redeems the AC is an open question.  Meanwhile, the Global South and the ACNA are evangelizing, planting churches and dioceses, while the ACI and CP seek to work within a corrupt ecclesiastical system.

Tony,

You might find this discussion offers some insight concerning the mission of the Church and the “battle” which you believe ACI to be waging in error. Your argument does not account for the arguments put forward and responded to in these posts.

See particularly posts #7 through 20. http://www.kendallharmon.net/t19/index.php/t19/article/31309/#comments

Katie, I responded to Phil’s comments not yours.  I actually agree that the primates and the ABC should not allow their authority to be diminished. 
As I have said I do not put as much faith in the covenant as you all.  pecusa in particular has demonstrated that she can sign anything if forced to do so and will do so without any compunction concerning the truthfulness of her actions.  As I have also said, I am heartened by the recent sanctions, but isn’t it obvious that Schori and Co. do not care about the unity of the AC and will not turn back from pecusa’s current course?  I generally don’t read the comments at T19 or SFIF, but I did look at the comments that you linked.  I find Stephen Noll’s the most insightful - the essay above, like SFIF at a previous point, do not take into consideration the role of the ABC.  He has circumvented the Dar es Salaam sanctions and now has let if not enabled this change in the ACC.  This is realpolitik at work in my mind.

Tony,
I do agree with you in the short term. But I think that we must take a long-term view because we must wait on God for our renewal. It is not assured that there will not be renewal from within TEC or, in my case, the ACoC. There are new, young, faithful leaders being trained to go into both parish and academic ministry. I am not saying this will happen right away, but serving from within might allow for this transformation - by God of course - to occur. It is furthermore a biblically faithful witness to serve from within the erring people of God - from the prophets of the OT to, most obviously, Jesus Christ himself. That, along with historical examples of evangelical renewal movements, at the very least within Anglican and Roman Catholic history, would seem to provide at least part of the basis for the underpinnings of ACI’s position. I really do suggest you check out Dr. Radner’s post on the T1.9 thread; I think you will find it offers some perspective that you might find helpful in understanding ‘the battle’ they are committed to. Yes it is one of submission, but submission to a patient waiting on God to reform the structures of the Church; something perfectly within his power to do even if it doesn’t suit our schedules. For some perspective of why this is so, check out that thread.

Katie

Dr. Radner’s comment - “It is not appropriate for one of the Communion’s four Instruments to be an English company….” - brought to mind a suggestion made elsewhere that it may no longer be appropriate for one of the Instruments to be an Archbishop who “is selected by a single Communion church, the Church of England, by means of an opaque process run by church elite. Moreover, the appointment is enmeshed with the politics of the United Kingdom. That selection process is undemocratic even within the Church of England, and no other member church of the Communion has influence over it at all….” (quoted from Lionel Deimel’s Web Log) Given what are the divisions within the Communion, I doubt that any of the Instruments is up to the task of preserving unity within the Communion, especially if unity requires member church’s adherence to certain - but clearly not all - Lambeth resolutions.

Daniel is surely correct when he says

I doubt that any of the Instruments is up to the task of preserving unity within the Communion

It definitely seems that the Anglican Communion is becoming more divided by the day, with each “last chance” being destroyed as it gasps for breath.  The latest such casualty would seem to be the Covenant, now suitably discredited by the shameless fiasco with the Standing Committee.  It certainly appears that Rowan Williams has cut out the legs of the Communion’s bishops (represented by the Primates and Lambeth Conference) from having any meaningful contribution to unity.  Furthermore, the ACC is exceedingly unrepresentative, and now apparently, subservient to a small group of western liberals who seem to follow no rules except those that they choose to follow.  Rowan Williams seems to have chosen a path of political manipulation and centralization, marginalizing the Global South while empowering western liberals.  The end result of this path will be, at best, a nominal Communion that is in reality an antagonistic federation of competing communions, and at worst, well, the same.

It is really too bad that Rowan Williams did not seek to lead the Communion towards a more organic, conciliar and representative future.  I think that the Communion would best be served by seeking to make the ACC more representative (give the smallest Anglican Province one seat and then apportion the rest by ASA).  Let the Primates and Lambeth Conference make significant decisions amongst themselves.  Let a Standing Committee emerge from the ACC and Primates with membership based on ASA representation.  Work with the British government on ABC appointments such that it would appoint as ABC a person selected and/or approved of by the Standing Committee.

Unfortunately, I think that for now the Anglican Communion will have to await its further destruction, wait for Rowan Williams (and perhaps a few of his successors) to pass and for the fading western liberal hegemony to die out.  Then hope that out of the ashes a new Anglican Communion can emerge from whatever nucleus forms out of the GAFCON faction.

James, you clearly understand the realpolitik at work in the AC.  I hope that your dire predictions don’t come true, but you may be correct.

Two thoughts:
1) Though I agree with what the ACI statement says, I think that a statement from the members of the Covenant Design Group, speaking as the CDG, that they were not informed beforehand of the changes to the ACC Standing Committee, and that the Committee as it has been reorganized under UK law is not the body they had in mind for such an important role under the Covenant, would carry more weight. I don’t necessarily mean a published statement, but I hope some such message to the Primates is being prepared, or has already been sent.
2) Has it occurred to anyone else that, if not for the procedural confusion of the Jamaica ACC meeting, and the delay which it caused in releasing the Covenant for consideration by the member Churches, the Covenant might already have been approved by some of them? Bad as it is to have this sleight of hand revealed now, it would IMO have been even worse if it had not been discovered until after the Covenant was in effect. If a Province had already signed onto the Covenant, would it even have been able to reverse its decision after the revelation, without the approval of the ACC Standing Committee?  The word “providential” comes to mind.

We really should be careful about overkill. The Charity Commissioners are charged with ensuring that a non profit entity is genuine, and has appropriate rules for holding, buying and selling property and that funds are raised and spent in accordance with the purposes of a society or group.  The SC has been identified as the body answerable to the commissioners in such areas.  We are in danger of driving reasonable people into the liberal ranks when we draw improbable conclusions or project worst case scenarios.

Fr. Tony Clavier - 05 August 2010 09:08 AM

We really should be careful about overkill. The Charity Commissioners are charged with ensuring that a non profit entity is genuine, and has appropriate rules for holding, buying and selling property and that funds are raised and spent in accordance with the purposes of a society or group.  The SC has been identified as the body answerable to the commissioners in such areas.  We are in danger of driving reasonable people into the liberal ranks when we draw improbable conclusions or project worst case scenarios.

What strikes you as overkill in the ACI’s paper?

The Charity Commissioners are extremely unlikely to involve themselves further than their duty to ensure that funds raised and property owned are properly managed.  It’s a stretch to contemplate the EU involving itself in international Anglican matters and only has any form of jurisdiction in the UK and the rest of Europe. 

I do agree that representation needs to be more reflective of the membership center in the Communion. I certainly agree that TEC, in its mastery of canonical manipulation, will continue to seek to frustrate the will of the majority, that the Standing Committee must be made work for the ACC and the other Instruments. It is vital that the Covenant be adopted as soon as possible. Until then the possibility for more mischief remains.

I think Fr. Clavier overlooks the distinction between charity law and company law.  The paper does not assume any overreach by the Charity Commissioners.  In fact, the paper is clear that the use of a U.K. entity for activities that need to regulated by U.K. charity law is not what is being objected to.  Bringing the ACC’s entire legal structure into a UK company means that its internal affairs are subject to UK law, which has implications that go beyond regulation under UK charity law.  One example mentioned in the paper is the imposition of particular voting requirements for amendment to the Articles.  Since the internal affairs of the company are subject to UK law, the fact that jurisdictional reach as to individuals outside the UK and Europe may be limited is not a satisfactory answer to the concerns raised. 

And the above is in addition to the power shift within the ACC that is effected by the new Articles and the attempted infringement on the prerogatives of the other Instruments and reduction in the role of member churches.  The suggestion is made that the paper draws improbable conclusions.  Is the thinking that although power may have been appropriated, it won’t be used?  Recent history suggests otherwise.