Seven constitutional questions on the Covenant

Apologies that this is a one-off posting - and is much longer than is sensible. I blame 'changed circumstances' for an inability to post regularly.

1) The consequence of signing the Covenant
The Covenant will bring in significant changes to the way the Church of England is governed and there has been no public debate, to the best of my knowledge, about its consequences.

I believe that adopting the Covenant would entail constitutional change in the Church of England at least as great as the Synodical Government Measure of 1969 and the Enabling Act of 1919.  Both these steps opened the government of the Church to wider participation by its members. The adoption of the Covenant could - depending on the manner in which it is implemented - enable top-down, possibly unaccountable, decision making on key areas of the Church's life. It could preclude certain areas of discussion from General Synod's agenda. It could lead to a significant concentration of information and power in very few hands.

The Covenant and its defenders insist that signatories would not lose their autonomous status within the Communion.  However the Covenant clearly anticipates that Provinces will self-censure and it is not clear that this will be done openly and with full debate. I suggest that the way the Covenant has been introduced to date at the very least gives grounds for suspicion. See my Bouncing the Covenant through the Anglican Communion. It was written in 2004.

Unless strong safeguards are in place it is likely that General Synod will find it has inadvertently come to an agreement which will constrain and distort the conduct of its  business in ways it had neither anticipated no intended.

2) Where we are now
So far, if I've got this right, 2 Dioceses have voted in favour (Lichfield and Durham), and 4 against (St Edmundsbury and Ipswich, Wakefield, Birmingham and Truro).

But there's a long way to go yet. So it seems worth raising at this stage a number of questions about the manner in which the Covenant would be implemented in England and, in particular, how it would relate to General Synod.

3)  Constitutional change
The two key elements of the Covenant which I believe will change the workings of the Church of England are,

1. the creation of a 'mechanism' - a person or office - 'to oversee the maintenance of the affirmations and commitments of the Covenant in the life of that Church, and to relate to the Instruments of Communion on matters pertinent to the Covenant.' (4.2.9), and   
2. the right of any signatory to the Covenant, or Instrument of Communion, to raise '... questions ... relating to the meaning of the Covenant, or about the compatibility of an action by a covenanting Church with the Covenant,'  (4.2.3)

I put them in this order because I think this will be the order in which the impact of the Covenant will make itself felt.

First an appointment will be made of a Covenant Compliance Officer (or some other less specific title). Undoubtedly the role will be as an intermediary or ambassador: to listen to all participants, to represent the views and concerns of the Church of England to other signatories of the Covenant and vice versa, and to communicate to the wider Communion any action or decision or, critically, proposed action  or decision that might cause concern. In all these actions timing will be critical.

Second, questions could be asked under Section 4 of the Covernant. And, when asked, action will need to be taken in response.

Third, between these two points there are two, equally important, stages. The first, implicit in the Covenant (4.2.3) is bilateral or multilateral talks to iron out any difficulties. This avoids reference to the Standing Committee unless no agreement 'shared mind' is reached.

But it is at least as likely that another Province (say) would raises a matter entirely informally, that is without invoking the Covenant procedures.

The massed ranks of Synod in session

In fact, I suspect that this will be the normal mode by which the signatories to the Covenant will work. The majority of Provinces the majority of the time will want to foster good working relations - and this cannot be done by rushing off to the Standing Committee of the Anglican Church on the faint whiff of something undesirable in a far-away land. But a quiet word at a meeting, a private letter or a request for information might well be the way to proceed.

And this may pose a bigger challenge to the constitutional government of the Church than formal proceedings.

4) Constitutional questions
So my questions are:

1) Where will power lie over the Covenant Compliance Officer or Office?

• Who will write their terms of reference and specify the boundaries and priorities of their work?
• Who will appoint, task and oversee them? 
• Who will hold them to account?
• Who may and who must be informed and consulted on day to day issues?
• Who may veto any proposed course of action?

The options, I guess are: the Archbishop of Canterbury, the House of Bishops or General Synod.  (Incidentally, I don't think an appointment can be made without further marginalising the elected members of the Anglican Consultative Council.)

2) How will the Covenant Compliance Officer or Office related to General Synod?

• Will Synod have any powers to direct the work, or to direct them not to pursue a particular line of work?
• How will communication between the Office and Synod be structured and maintained?
• Will Synod appoint a committee to over see the work? Or have a liaison committee? Or, at the other end of the scale, will it merely receive a report on past work and, if so, will there at least be an opportunity for informed questioning?

3) What will happen if there is a bilateral or multilateral expression of concern about any proposed or anticipated course of action which may come before General Synod?

• Where will primary responsibility lie for responding to such concerns?
• Who will be involved in discussions and negotiations?
• How will agreement (coming to a 'shared mind') be ratified? Will it bind General Synod? Will a simple majority suffice?

And, more generally,

• Are there areas of decision making which should not be subject to external scrutiny? If so, which areas?
• Should there be a means of voting (a Section 8 referral for example) by which the CofE as a whole could over-ride the concerns of the complainant and continue to pursue its own course?

Under the Covenant a single Province can lay a complaint and it is up the the Standing Committee of the Anglican Communion to pursue it through further conciliation (4.2.4), by asking a Church to delay a decision (4.2.5), or by declaring the action or decision “incompatible with the Covenant” (4.2.6 - in inverted commas in the original). 'Relational consequences' may then follow.

4) What will happen if there is a formal expression of concern by the Standing Committee of the Anglican Communion about any proposed or anticipated course of action which may come before General Synod?

In addition to the previous questions: 

• Under what circumstances would it be appropriate for the Standing Committee of the Anglican Communion to impose sanctions on the CofE (e.g. by requiring members of international consultative bodies to step down because the CofE as a whole is pursuing an unpopular course)?
• Who would be responsible for the CofE's response to such a measure?

5) And, much earlier in the process, what will happen if there is an informal expression of concern about any proposed or anticipated course of action which may come before General Synod?

I suspect this is the critical test. Given that the point of an informal expression of concern is to avoid making waves in public:

• Who may and who must be informed?
• At what point, and by what route, should Synod be consulted?  (E.g. would consulting the Standing Committee be sufficient? Will there be provision for the full Synod to debate an issue with press and public excluded?)
• Should the expression of concern be made solely to the House of Bishops?

Of course the exact details of the expression of concern will make a difference - my focus is on what constitutional mechanisms are envisaged or would be appropriate.  My fear is that the instinct of officers would be to restrict discussion and constrain debate. The consequence could be that accountability will be limited and the role of Synod in the government of the church will be undermined.

6) How would the CofE discharge its duties under the Covenant towards developments in other Provinces?

• What areas of concern should the Covenant Compliance Office monitor on behalf of the CofE? And, see (1) above, how will these be reported back, and to whom?
• Could any member of Synod initiate a debate expressing concern about actual or potential developments in other signatory Provinces? 
• If not, what other routes are available to raise an issue of concern? And how can trivial or vexatious complaints be avoided?
• Could Synod mandate its Covenant Compliance Office to initiate the proceedings envisaged by Section 4.2.3 of the Covenant? If not, who could?
• How will a judgement be made that the response has been satisfactory? Will a further debate be necessary? And who decides?



Times are hard enough already without
signing an open cheque.

• If Synod is not involved in this process how will it be possible to avoid damaging tensions within the CofE given the likelihood of a range of views on any issue?

And, last but not least, as I've asked before,

7) What will this all cost?

In the normal course of events Synod is not able to take a decision without examining the financial implications.

• Why is the Synod's procedure not being followed in this case?

Now it may be that someone somewhere has drafted answers to all these questions and more. In which case it would be useful to have the proposals public so voters can see some of the ramifications of the options before they make their decision.   But if no-one has addressed the constitutional implications then I'm even more worried.