Covenant: vague process for dispute resolution

The Revd. Alan Perry, Priest of the Anglican Church of Canada, Canon: Christ Church Cathedral, Montreal, and Canon law expert, raises a series of questions about problems of vagueness in the process for resolving disputes in the proposed Anglican Covenant:

The proposed Anglican Covenant exists primarily to create a framework for the settling of disputes in the Anglican Communion. Arising as it does in the context of a protracted dispute over local decisions about the inclusion of sexual minorities in the sacramental life of the Church, and of border-crossing interventions from other Churches, it is no surprise that the proposed Covenant reflects this conflict. So how does it propose to deal with conflict?

WHO CAN RAISE A QUESTION? AND HOW DO THEY DO THAT?

Section 4.2, “The Maintenance of the Covenant and Dispute Resolution” sets out the mechanism by which disputes would be regulated in the future. The euphemism for lodging a complaint is “Raising a Question.” (4.2.3)

A question may be raised concerning either the meaning of the proposed Covenant, “or about the compatibility of an action by a covenanting Church with the Covenant.” This is the last we hear about questions concerning the meaning of the proposed Covenant, so it is clear that such questions are really not the focus of the process. So let’s focus on the second class of questions, compatibility with the Covenant.

The first thing to notice is that the proposal specifies clearly who may raise a question: a Church itself, another covenanting Church, or an Instrument of Communion.

Presumably when a Church raises a question, it is likely to be a pre-emptive reference to determine whether a course of action it proposes will bring down the wrath of the Communion. In Canada our Parliament periodically refers proposed legislation to the Supreme Court to determine the Court’s opinion as to whether the legislation will be constitutionally valid. So, I assume that the raising of a question by a Church about its own proposal is along similar lines. What’s not clear is the mechanism within the Church for posing the question. Presumably it would be a matter of the particular polity of the Church. In some Provinces, the Primate would possibly have the authority to raise a question. In others, it may require a resolution of the General Synod or equivalent. Some churches might consider giving their highest court the authority and mandate to raise questions, though of course, that would be a change to a canon, which section 4.1.3 assures us is not implied by the adoption of the proposed Covenant.

For an Instrument of Communion to raise a question, there is also no specified mechanism. Again, it might be a matter of the nature of the specific Instrument. The Archbishop of Canterbury could easily just write a letter to raise the question. And the Anglican Consultative Council could adopt a resolution to raise a question. But what of the Primates’ Meeting and the Lambeth Conference? Since they are not legislative bodies, but deliberative bodies, how do they decide to raise a question? A resolution is the obvious answer, but what happens when, as in 2008, the Lambeth Conference is not considering any resolutions? And, anyway, how would the possibility of raising a question appear on the agenda of any of the three collective Instruments of Communion? Presumably, a Church would petition the convenor or president of the relevant Instrument to consider raising a question, but why use a middleman when the Church can raise the question itself?

WHO IS IN CHARGE OF A QUESTION AND WHAT PROCESS DO THEY FOLLOW?

At least now we know that the Standing Committee is in charge of the question and its process. So what next? Well, first “the Standing Committee shall make every effort to facilitate agreement” presumably by whatever process it chooses, given that no process is mentioned. Question is, wasn’t there already some kind of process to attempt to reach a shared mind? What’s the difference between that and facilitating agreement? At least the Standing Committee isn’t on its own here, for it “may take advice from such bodies as it deems appropriate.” It’s not clear, of course, whether such advice should be solicited by the Standing Committee, or might just arise, ex nihilo, from some body or other, whether celestial or terrestrial. In the latter case, it seems the Standing Committee can determine whether to listen to the advice or not. Not that there are any criteria to guide the Standing Committee with respect to the appropriateness of the body offering the advice. (Is it just me, or does the Standing Committee have a huge amount of discretionary power?)

To find out more about the proposed covenant and its lack of clear process read more here