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.  


Brisbane defers the Covenant

Culled from an Australian Catholic discussion board:

Just came from the Brisbane synod vote [Saturday 23/June] on approving the Anglican Covenant. Rather than approve or reject it, they took the 'Welsh Option' and instead passed the following motion which acknowledges that the process has been somewhat overtaken by events.
That this Synod recommends to the General Synod that it:
Affirm the commitment of the Anglican Church of Australia to the Anglican Communion.
Affirm its readiness to engage with any ongoing process of consideration of the Anglican Communion Covenant
Request clarification from the 15th meeting of the Anglican Consultative Council as to the status and direction of the Covenant Process in the light of the position of the Church of England.
Urge upon the Instruments of Communion a course of action which continues to see reconciliation and the preservation of the Communion as a family of interdependent but autonomous Churches.

The Anglican Diocese of Brisbane and the Roman Catholic 
Archdiocese of Brisbane and Diocese of Toowoomba 
signed a Covenant on 29 May 2009
The author adds:

There are some real structural problems with the Australian Anglican Church and the covenant. Everyone has to agree otherwise no-one can, and there is absolutely no chance that all diocese will agree so its a moot point.
All we can do about it from this side of the world is to keep affirming our commitment to communion and ongoing dialogue. The covenant debate was a useful trigger for starting that sort of dialogue for those who actually considered it.

The Brisbane Diocesan website
doesn't seem to have the result yet. It has the speech to Synod by the Archbishop Phillip Aspinall in favour of the Covenant which concludes,
So I think Australia should enter into the Covenant. We have further contributions to make as the Covenant evolves. Indeed the unique shape of the Australian Church means we may have a very important contribution to make. We can only do that if we are on board.
I look forward to hearing what emerges from the group discussions this afternoon and to the debate in Synod. You now know what I think, but we Anglicans believe in dispersed authority, so I wait to see what you think!


Something strange in the woodshed

The picture is intriguingly entitled
Anglican_Communion_corrected. By whom?
Some funny things are going on in relation to the Covenant.  I guess they reflect divided attitudes amongst those who might regard themselves as 'players' in this particular game.

1) The Standing Committee of the Anglican Communion
The first was the announcement by the SCAC that there was now "no timeframe" for the adoption of the Covenant:
The Standing Committee received an update on the progress of the Anglican Communion Covenant. It was noted that eight Provinces had endorsed the Covenant to date, in some cases with a degree of qualification. They were the only responses received so far by the Secretary General. The committee also noted that the President, Chair, and Vice-Chair all hold their offices other than as representatives of their Provinces. 
There was general agreement that no timeframe should yet be introduced for the process of adoption of the Covenant by Provinces. The Standing Committee will return to this question following ACC-15. Press Release
While it was entirely understandable that the Church of England should not yet have informed the  Secretary General of the result of its deliberations on the issue, has not the Province of the Philippines told him that they have rejected the Covenant, or did he just forget to mention it?

"No timeframe" and "following ACC-15" keep options open. Drexel Gomez' drumbeat of 'urgent, urgent' has clearly been ignored. Instead an open-ended process would allow the Anglican Consultative Council to kill the Covenant if enough members wished to do so. Alternatively it would allow one province after another to sign up till those who had initially declined to do so became overwhelmed by its popularity and conceded.

Conditional trusteeship of the Anglican Communion?
The reference to the standing of ex-officio members of the Standing Committee strongly suggests a worried conversation on the lines of 'what is the role of members of the Standing Committee who represent provinces which have not signed the covenant?' (Which could easily be 5 out of 11 elected members.)

My understanding of English charity law (which governs the Committee) is that it is pretty straightforward: as trustees they must all act in the best interests of the charity and not of any nominating or electing body; they cannot be excluded from decision making (except in cases of conflict of interest) nor delegate their responsibilities to others. Some could, of course, voluntarily step back from certain questions or decisions. 

But this would result in the farcical position of overlapping layers of decision making within the governing body of the Communion. Once again, the Covenant would be a source of visible disunity in the Anglican Church.

2) GS1878: report by the Business Committee on the reference [of the Covenant] to the dioceses

GS1878 is a masterclass in hints and insinuation in an objective report. Having noted the defeat of the Covenant under the rules, it says,

6) ... For the record, there is nothing in the Synod’s Constitution or Standing Orders that would preclude the process being started over again, whether in the lifetime of this Synod or subsequently, by another draft Instrument to the same effect being brought forward for consideration by the General Synod before being referred to the dioceses under Article 8. The Business Committee is not, however, aware of a proposal to re-start the process in this way.

General Synod in session
Now why would you comment on a matter which has not been proposed? 

I don't doubt the first sentence is factually correct but I wonder whether this paragraph was included in any earlier report on a defeated Article 8 business. It sounds like a snub to those who confidently stated that that the matter cannot be brought back to Synod before 2015. But even if this is not absolutely and constitutionally correct it is certainly politically impossible to bring the issue back in this Synod: so to whom is this hint directed?

More worrying is the extended discussion on the votes. While, again, I'm sure it's accurate in every detail it is completely irrelevant. Its sole purpose seems to be to obfuscate the result and imply that the vote is in some way unreliable. 

Whether by intent or not, the discussion is undermining of synodical government. In the 18 years' debate which led to the creation of General Synod the repeated refrain was: 'the Church is not a democracy'. Voting by houses and dioceses was an expression of the synodical character of the government of the Church of England. It deliberately avoided making individuals the constituent element of church government (as, for instance, did the refusal to give all lay members a vote for their representatives in General Synod).

Thus the CofE's governance does not ask, are a majority of members or their representatives content with a proposal, it asks: are a majority of local synods content? And they were not.

Yet now we are told that if a few individuals here or there changed their mind or their diocese the result could have been quite different (paras. 8&9). Correct, I'm sure, but so what? Members voted the way they voted, synods divided accordingly and the motion was lost. 

The only 'so what?' I can think of which might justify the Business Committee endorsing such a report is that they were thoroughly brassed off with the result. If this isn't an abuse of process it is certainly playing fast and loose with the interpretation of the result.