The legal fiction at the heart of the Covenant

The whole Anglican Covenant turns on a necessary legal fiction.

The fiction is that no Covenant signatory is in any way subordinated to an external body.

The fiction is necessary because several prospective signatories could not sign the Covenant if it entailed any degree of external control.  The national laws which govern them would not permit it. This is probably the case for England and certainly for the United Churches of North and South India, and the Church in Hong Kong.  It may also be true for others.

Even Churches not explicitly prevented from such a step may well find their position in relation to their state authorities compromised if they were perceived to be, or could be portrayed as being, subordinate to external authority. I believe this would be the case for Sudan,  Jerusalem and the Middle East, Pakistan and Myanmar at least.

No subordination and be nice to one another
Therefore the Covenant stresses that:
(4.1.3)  Such mutual commitment does not represent submission to any external ecclesiastical jurisdiction. Nothing in this Covenant of itself shall be deemed to alter any provision of the Constitution and Canons of any Church of the Communion, or to limit its autonomy of governance. The Covenant does not grant to any one Church or any agency of the Communion control or direction over any Church of the Anglican Communion.
But the core question is the balance of autonomy with interdependence and so the Covenant also states broad, bland principles as to how autonomy is to be exercised.  Each signatory Church commits itself:
(3.2.1)  to have regard for the common good of the Communion in the exercise of its autonomy, to support the work of the Instruments of Communion with the spiritual and material resources available to it, and to receive their work with a readiness to undertake reflection upon their counsels, and to endeavour to accommodate their recommendations.
(3.2.2)  to respect the constitutional autonomy of all of the Churches of the Anglican Communion, while upholding our mutual responsibility and interdependence in the Body of Christ, and the responsibility of each to the Communion as a whole.
Who could object? This is, after all, no more that the Communion has been doing since 1867.

What's new in this Covenant?
Those who want this Covenant do so because asking Churches to be nice to one another has not stopped the Communion falling into self-destructive conflict.  They want (to put it at a minimum) to have the capacity to step in to inter-Church conflicts, to head them off before they build up steam, to adjudicate on the issues in dispute and, finally, to remove Churches which offend against the consensus.

Subordination and autonomy
These goals clearly entail degrees of subordination. The processes are set out in Section 4.2:

1) On joining the Covenant Churches agree to the statement that
4.2.1 ... Participation in the Covenant implies a recognition by each Church of those elements which must be maintained in its own life and for which it is accountable to the Churches with which it is in Communion in order to sustain the relationship expressed in this Covenant.
The 'elements' are not only the broad principles of co-operation but also the practical step of a liaison officer in each Church. Although phrased as a 'recognition', i.e. an action of the member church, it is clearly an instruction.  (Incidentally, this is the only place that 'must' is used in the document though 'shall' is used frequently.)

2) At any point 'a question' (4.2.3) may be raised as to what the Covenant meant or entailed in a particular context, or whether a particular action by one Church is, or is not, compatible with the obligations accepted in signing the Covenant.  (It's not clear whether 'action' would include 'teaching'.)

Such a question may be raised by any Church or Instrument of Communion.  Which presumably would include the parish of the Falkland Isles and the Archbishop of Canterbury as an individual.

Still, the asking of a question in itself does not imply any subordination, depending on what follows.

3) 4.2.4 opens with
Where a shared mind has not been reached the matter shall be referred to the Standing Committee. 
The ordinary process to achieve a 'shared mind' is outlined in 3.2.4: consultation, negotiation, bargaining takes place 'through the Communion's councils' and each Church 'will undertake wide consultation ...'.  Therefore any issue between any Covenant members inevitably becomes a matter for all the members.  The Standing Committee have presumably been deeply involved already.  However, under 4.2.4, the Standing Committee have to have another go to find a solution to the issue.

4) But this time they may do so with teeth:
(4.2.5)  The Standing Committee may request a Church to defer a controversial action. If a Church declines to defer such action, the Standing Committee may recommend to any Instrument of Communion relational consequences which may specify a provisional limitation of participation in, or suspension from, that Instrument until the completion of the process set out below.
A request with sanctions is an instruction or command in any language.  This is a direct infringement of a Church's autonomy in that, first, an external agency may seek to control the timing of its actions and, subsequently, the Church may not determine for itself the degree or fact of its involvement in the central bodies of the Communion.

Then, 4.2.6, the Standing Committee seeks the advice [note 1] of the ACC and the Primates' Meeting (whose members will have been deeply involved in the dispute from its beginning) and, with it, may declare a Church's 'action or decision' [note 2] to be "incompatible with the Covenant" [note 3].

And this is the clever bit when it comes to autonomy:
(4.2.7)  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. 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. Each Church or each Instrument shall determine whether or not to accept such recommendations.
From madimaginations
Thus the 'good' Churches are asked to turn away from the offending Church.  The autonomy of the offending Church is not technically infringed because nothing is demanded of it.  Everyone else sends it to the ecclesiastical naughty corner until it changes its ways.

In fact the threat of sanctions will always lie behind discussions seeking a 'shared mind' on any issue: therefore such discussion can no longer be free and open. Relations between individual Churches and the Instruments of Communion will always be marked by an awareness that any innovation may be constrained, even blocked, by objection from elsewhere or by self-censorship in the face of such a possibility.

Autonomy is technically respected and in practice it is limited by subordination both to the other signatories of the Covenant and to its central organs.  What the secular courts may make of it is unknown.

Of course, in real life, disputes are seldom between one Church and all the rest.  It is entirely predictable that some Churches will turn their back on the offender and others won't.  Perhaps blocs of Churches will be sanctioned together.  That is to say, the operations envisaged in the Covenant will have the consequence of splitting up the Communion.  Which is what some have argued that the Covenant was about from the very beginning.

1) the Standing Committee is not bound by the advice of the Primates nor the ACC (and, in British charity law, cannot be bound).  Although improbable, given overlapping memberships and a natural desire not to rip the instruments of communion apart, the SCAC may not follow the advice given - perhaps for legal or other reasons.

2) while a decision is presumably an action, all the other references in the Covenant are to 'actions' alone with no mention of decisions.
3) "incompatible with the Covenant" is in quotation marks in the Covenant presumably to indicate that it is a technical term for a semi-judicial judgement.

1 comment:

  1. Paul, I commend you on the clarity of your breakdown on what I choose to call the awfulness of Part 4 of the Daft Covenant.

    I've said elsewhere that while many of us see no need for an Anglican Covenant, at least some of us could perhaps live with the first three sections. Part 4, with its snatching away of autonomy from member churches and its punitive consequences for those churches who don't have their doctrinal and practical ducks lined up in a proper row, is the section that is unacceptable as it's now presented. That the Daft Covenant is declared to be not subject to amendment, means that only a yea or nay vote on the document as submitted is all that is possible.