Squaring the circle

I've been mulling over one paragraph of a post by George Conger, first published in the Church of England Newspaper of June 17.  It comments on the ACNS press release after the last meeting of the Standing Committee of the Anglican Communion which I noted here earlier.

The must-have button for General Convention 
You can set aside the headline 'England allowed to discuss Anglican Covenant': it says nothing and is wholly unrelated to the text. It probably merely indicates the prejudices of some headline writer.

Conger says,
Under the terms of the Anglican Covenant, provinces that do not ratify the agreement would not be able to participate in decision-making about the covenant. While the Church of England cannot reconsider the covenant until 2015, the Standing Committee carved out an exception to this rule to allow the Archbishop of Canterbury and Mrs. Paver, the Church of England’s lay representative to the ACC to remain part of the process – though not as a representatives of the Church of England.
The rule referred to is:
(4.2.8) Participation in the decision making of the Standing Committee or of the Instruments of Communion in respect to section 4.2 shall be limited to those members of the Instruments of Communion who are representatives of those churches who have adopted the Covenant, or who are still in the process of adoption. (The Anglican Covenant)
First, English representatives would currently have no problem with this clause because they may be regarded as 'still in the process of adoption'. So too will every Province which does not actually reject the Covenant (which is the Philippines and Scotland to date - and that's assuming they've informed the ACO officially).

Secondthe SCAC determined that those who are members of the committee ex-officio are not present as representatives. Unfortunately for them this merely confirms that they cannot, under the rule, participate 'in the decision making ... in respect to section 4.2' [of the Covenant]. Bishop James Tengatenga, as chair of the ACC, and Mrs. Paver, as vice-chair, cannot participate in discussion of Covenant issues precisely because they are not 'representatives'

This might also pose a question for those Primates who are members of the SCAC. Para. 6 of the Schedule to the Constitution (pdf) of the Anglican Consultative Council, and §8.5, describes them as Ex-officio members of the ACC, their membership lasting only so long as they are members of the Standing Committee. While they self-evidently represent their respective Churches they are not members of the Standing Committee in a representative capacity.

The Archbishop of Canterbury is an Instrument of Communion in his own right and can presumably participate in that capacity, but not, by section 4.2.8, as a member of the SCAC. Presumably also Bishop James Tengatenga and Mrs. Paver can be involved in such Covenant decisions only when the matters are under consideration by the Anglican Consultative Council itself because there they are representatives. 

And, I would suppose, their absence from decision making will have to be explicitly recorded and the records subject to disclosure should any disgrumtled Church consider legal action.

Third, and almost incidentally really, the Covenant does not give the Standing Committee power to have 'carved out an exception to this rule', or any other. 

Fourth, critically, I suggest that this section of the Covenant will, if put into practice, lead to actions which are not in accord with English charity law.

Members of the SCAC are trustees of the ACC. The Charity Commissioners' Essential Trustee (a summary, not the law itself) says:
(D) Trustees and their responsibilities
Charity trustees are the people who serve on the governing body of a charity. They may be known as trustees, directors, board members, governors or committee members. The principles and main duties are the same in all cases.
(1) Trustees have and must accept ultimate responsibility for directing the affairs of a charity, and ensuring that it is solvent, well-run, and delivering the charitable outcomes for the benefit of the public for which it has been set up. 
(E7) Trustees can generally delegate certain powers to agents or employees, but will and must always retain the ultimate responsibility for running the charity. (Emphases added.)
The Constitution of the charity (the Anglican Consultative Council) is the primary document for the charity and trustees must conform to it: neither the Covenant nor the trustees themselves can override it. 

The Constitution, as usual, grants the Standing Committee the power to order its own procedures, the Archbishop of Canterbury having a veto) (§27.1:2). It is this power, I suspect, which enabled the Standing Committee to try to sort out the mess this bit of the Covenant is already starting to create.

The Constitution, so far as I could see, makes no provision to exclude trustees from decision making except where there is a conflict of interest or loyalty (§10)). The Charity Commissioners say,
Trustees appointed by another organisation, such as by a local authority, (sometimes referred to as nominative or representative trustees) have exactly the same duties and responsibilities as other trustees. They must act independently of the organisation which appointed them and act only in the best interests of the charity. There may well be occasions where such trustees will have to act in a way which conflicts with the interests of the organisation appointing them. In such circumstances the best interests of the charity must come first; this duty overrides all other considerations. (A guide to conflicts of interest for charity trustees.) 
As I understand it, trustees may not recuse themselves from whole areas of the charity's decision making by policy. Covenant or no Covenant. There is no such power in the Constitution and to do so would be to cease to exercise their trusteeship.

I suggest that section 4.2.8 of the Covenant, if implemented, would almost inevitably be in conflict with English charity law and the application of it would certainly give lawyers grounds for an action against the  SCAC if a Church felt it had been unfairly penalised or disadvantaged.

Therefore something must give. It will be the Covenant.

Disclaimer: I'm not a lawyer, canonical nor secular. But I do work for a charity and need at least a rudimentary grasp of the principles. However, if you can point me to any misrepresentation or case law or anything authoritative at variance with my argument I will make whatever changes are necessary to this post and apologise at the earliest opportunity.

And, if you can do that, you might also be able to answer another, related, question. What's the legal standing of 'alternate' trustees? I can't see a reference in the Constitution to this practice of naming deputies, and I can't see how they can be trustees unless they're full members. The Charity Commission doesn't list them as trustees. I suppose they could merely have observer status. Either way, I think this is an example of the SCAC being too casual about trusteeship - and, as always, opaque.  


  1. I expect the matters you cite in your post are only the beginning of the possible conflicts of interest and complications for member churches of the Anglican Communion that adopt or reject (or something in between) the Covenant.

  2. I think so. In attempting to find a new basis for unity and inter-church relations the Covenant is intended to cut across existing relationships and structures.

    The ACC has a formal constitution and legal structure. It can be undone and reconstituted - everything is politics - but it needs a different approach. If this is to be done well then the existing structures must be fully respected even while working towards the new.

    And if we get to Covenanted and non-Covenanted Churches working together on different bases there are bound to be points of significant (and destructive) tension.

  3. Tony Fitchett28/6/12

    Mr Conger is wrong in describing Mrs Paver as being "the Church of England's lay representative to the ACC". When she was became Vice-Chair [in 2009] she ceased to represent the C of E on the ACC, and the C or E, no doubt, will have elected another lay rep. The ABC, of course, is does not represent the C of E on the ACC either - he is President of the ACC ex officio.

    Mr Conger feels it is self-evident that the Primates on the ACC represent their provinces. A Primate could represent his or her Province if elected by that province as one of that Province's representatives, but if elected by the Primates he or she is representing the Primates, not his/her province.

    Mr Conger may have a point in his comments on trustees not taking part in decision making - just another reason not to adopt the proposed Covenant.

  4. Mr Fitchett,

    Welcome, it's very good to hear from you. I suspect that George Congar was not paraphrasing the press release directly so much as a conversation he'd had on the issue - just a guess.

    On a related matter: is there any news of the legal opinion on the relationship of the Covenant to the Constitution of the ACC (if I remember rightly) that you were reported as asking for?

    Was it ever commissioned? Written? Delivered?

    I understand these things are seldom published but it would be interesting to know anything that could be stated on the matter.

    1. Tony Fitchett29/6/12

      Dear Paul,

      I certainly moved the motion in our General Synod/te Hinota Whanui which, inter alia, asked the question, but the question was officially asked by the Anglican Church in Aotearoa, New Zealand and Polynesia. My understanding is that no formal reply has been received by this church to the question it asked of the Secretary-General. However, I understand from informal discussion with a variety of people [and it sounds logical to a me, a non-lawyer] that as the ACC, acting through the SC, approved the final text of Section 4, the restrictions imposed by Section 4.2.8 are valid, but only in respect to those actions listed in 4.2. So, if, for example, the ACC itself, having been advised by the SC that a church was acting in a way contrary to the Covenant, and was dicussing whether that church should be restricted from taking part in Communion activities, that decision would be made by the whole ACC, without exclusion from decision-making of the representative[s] of that church.
      I hope that is helpful, though not in any sense official.

      It is to be hoped that all this will become irrelevant as the proposed Covenant dies.