Questions on the critical clause

The critical clause (4.2.7) in the Covenant in relation to the new powers it creates reads (my numbering):

1) On the basis of the advice received, the Standing Committee shall make recommendations as to relational consequences which flow from an action incompatible with the Covenant.

2) These recommendations may be addressed to the Churches of the Anglican Communion or to the Instruments of the Communion and address the extent to which the decision of any covenanting Church impairs or limits the communion between that Church and the other Churches of the Communion, and the practical consequences of such impairment or limitation.

3) Each Church or each Instrument shall determine whether or not to accept such recommendations.

(1) Advice is received from the Primates' Meeting and the ACC. It can only be a advice: the autonomy of the Standing Committee of the Anglican Communion (SCAC) means that it cannot be instructed. If it were instructed, and acted in accordance with those instructions without debate, it would be liable to legal challenge on Trust and Company law.

The Commentary on Revisions to Section 4, issued with the final version of the Covenant, was at pains to stress the autonomy of member Churches and also that:

What is made explicit in the current draft is that the Standing Committee derives its authority from its responsibility to the two Instruments of Communion which elect its membership, and on whose behalf it acts. It provides a co-ordinating function for matters to do with Covenant maintenance, supported by relevant expertise (cf 4.2.2) and in close communication with both the Anglican Consultative Council and the Primates’ Meeting, on whose advice it acts. (cf 4.2.6 and 4.2.7)

This is accurate historically and structurally but not legally. The SCAC acts on behalf of the Primates' Meeting and ACC but only in the sense that the SCAC must determine for itself what is in the best interests of the Communion in accordance with the charity's stated objects (see below, The centralised state of Anglicanism).

No amount of gloss will hide the fact that it is the trustees of the Communion (the SCAC) in whom full legal powers are vested and who may not legally delegate their decision making to others, not even to those who elected them. The politics may make it difficult for the SCAC to avoid the advice of its electorate but the law says it must be wholly responsible for its decisions.

We are punching in the dark to some extent here given that the revised constitution and the new Memorandum and Articles of the SCAC have not been made public (see below). We do not know how the formal relationship between SCAC and the ACC is described, nor whether or to what extent the Primates' Meeting is formally recognised within the new constitution. None of this ignorance changes the position of the trustees.

(2) Why 'or' in the phrase: "... recommendations may be addressed to the Churches of the Anglican Communion or to the Instruments of the Communion ..."? This would seem to preclude recommendations made to both. So, presumably, if the recommendation to the Churches is to turn their back of the malefactory member the SCAC cannot at the same time ask the Instruments of Communion to withdraw their co-operation. And vice-versa.

And, while we're at tiny detail, why 'the' in: 'Instruments of the Communion'? This would seem to imply that the ACC and the Primates' Meeting are the tools of the SCAC as the legal entity of the Communion. (It could just be a typo, of course, as elsewhere in the Covenant the phrase is 'Instruments of Communion'. But you can't afford typos in a foundation document, nor in a document liable to close legal scrutiny.)

The model of conflict on which the Covenant is based is here at its sharpest. The origin is surely a simplified narrative of the present dispute in which TEC is the baddie and everyone else is appalled.

The focus is on:

the decision of any covenanting Church [which] impairs or limits the communion between that Church and the other Churches of the Communion

But we are talking about relationships here - and relationships are not one-sided. The extent of impairment or limitation of a relationship lies as much with the offended church as with the offender. Furthermore the presence of the Covenant mechanisms would seem to preclude the chance of continued amity in disagreement and encourage churches to take offence.

A much more serious weakness is that the whole mechanism appears to presume a model of one-way offence. One Church takes a decision that one or more others don't like. One Church is the offender and bears the moral obloquy; the innocent are hurt. But the much greater probability is of a number Churches taking differing stances over a particular issue, of some Churches being divided within themselves, and of highly complex conflicts without obvious angels and demons. Similarly steps are likely to be small and cumulative away from one another and any trigger-points artificially constructed.

In sum, the Covenant arrangements will magnify smaller disputes which participants could probably sort out for themselves, and be wholly inadequate to a complex, multi-directional conflict which divides the Communion. Power politics will not confine itself to rules that don't enable the powerful to achieve their objectives.

(3) And after all that it's apparently entirely up to each member Church or each Instrument of the Communion to make up their own minds what to do. (Except that it does not appear to have the option of remaining neutral or making no formal response: it 'shall determine whether or not to accept such recommendations.')

Either this makes the whole process vacuous or (more likely) each body will have decided what it will do long before the final determination; it might merely wait for organisational or pseudo-legal cover.