17 June 2011

Canadian Legal Analysis

The Governance Working Group of the Anglican Church of Canada has released its report on the legal and constitutional implications of the proposed Anglican Covenant, as requested by the General Synod. In addition to the report, there is also an executive summary.

The report analyses the proposed Covenant under four headings:

Definitional Concerns lists no fewer than nine key terms in the proposed Covenant that are left undefined. This is a concern because, as the report states, “the Covenant is more than a statement of belief or intention; it is a legal document.” Exactly. And as a legal document it requires clarity of definition. For without clarity, the report says, it is “difficult to know the full nature and extent of the obligations which would be undertaken by adopting the Covenant.” That being the case, it is difficult to understand how any Synod can responsibly vote to adopt the Covenant.

Under the rubric of Procedural Concerns, the report discusses seven difficulties with the dispute-settling process in the proposed Covenant. For example, the report raises concerns about the vagueness of the process in section 4.2. (See my comments in this vein here.) It also notes that the process fails to guarantee the principles of Natural Justice. I have also analysed this issue in two parts here and here. Furthermore, there is no right or mechanism to appeal a decision of the Standing Committee.

The report also considers Constitutional Concerns for the Canadian Church. These include issues such as the assumption in the proposed Covenant that all Churches are unitary bodies, but the Canadian Church is not. It is thus not obvious how the obligations of the Covenant would be enforced in Canada, assuming we could accurately determine what those obligations are. (For non-Canadians, I suggest you read this section anyway and then ask whether the concerns apply to your own Church.)

Finally, the report discusses Consequences of Not Adopting the Covenant. Actually, aside from not being able to participate in the dispute-settling procedures and being exempt from those procedures, there don't seem to be any significant consequences. A point worth pondering.

The report also solicits feedback on a series of ten questions. I suggest that, having carefully read the report, those questions provide an indispensable framework for the study of the proposed Covenant. In my view, they should be asked by every member of every Synod prior to voting on a resolution to adopt the Covenant.

The report provides a thorough analysis of the legal and constitutional implications of adopting or not adopting the proposed Covenant. Although it is written from the Canadian perspective, I suggest that it would nevertheless be a valuable resource for Anglicans around the world.

General Synod also requested a theological analysis of the proposed Covenant. I look forward to it eagerly. The legal analysis has established a very high standard.


  1. How do we know that the Covenant is a legal document, and what are the other possibilities?

  2. An excellent question, Dunstan.

    We know it is a legal document because:

    1) it is a formal agreement among several parties which includes undertakings to do certain things and to refrain from doing certain things;

    2) this agreement is being presented to legislative bodies (Synods) for formal adoption by legal processes;

    3) having adopted the Covenant (i.e., having enacted legislation to accept the undertakings in it) the covenanting Churches will be bound by it;

    4) the Covenant contains mechanisms for enforcement of the undertakings.

    I think the best way to understand the Covenant is as a form of international treaty which, when adopted by a country, becomes part of that country's law.

    There are alternatives. Earlier I wrote on the question of instrument choice. The indaba process, which began at Lambeth 2008 and is ongoing is an alternative. The sort of meeting held a few months ago among Canadian and African bishops is another. The key questoin is whether a coercive response is desirable. Personally, I think not. But that's what we have in the Covenant.

  3. What is the impact upon a legal document of having significant terms without clear definition? Could such an (intentional?) oversight render such a document unenforceable?

    Actually, my wondering about other possibilities, was more along these lines. Not, "what could we do other than a covenant", but "could this covenant more helpfully or appropriately be understood as a document other than a binding legal document?" Is there any space in the legal system for recognizing an agreement as failing to come up to the requirements of a contract or treaty or an otherwise legally binding agreement?

    After all, as you and this analysis point out, important terms lack clear definitions and the process laid out in section four is pretty bad from the point of view of maintaining justice. Additionally, section four even tries to insist that the Covenant has no impact on Provincial constitutions and canons. Perhaps, this just means that it was written by a bunch of non-lawyers who didn't pay close enough attention to their legal advisor(s), but I wonder at what point it would become more like an informal or aspirational agreement.

  4. What is the impact upon a legal document of having significant terms without clear definition? Could such an (intentional?) oversight render such a document unenforceable?

    I would suggest that rather than rendering the terms of the Covenant unenforceable, the ambiguity of the definitions could lead to arbitrary enforcement. This is made more likely by the vague process for enforcement in section 4.2, and by the fact that there is no mechanism for an appeal. If a signatory Church disagrees with a ruling against it, there would be no recourse except to withdraw from the Covenant, which might carry its own "relational consequences."

    In addition, as the report points out, the lack of clarity makes it impossible for any Church considering the adoption of the Covenant to know exactly what it is agreeing to. It's not exactly a blank cheque, but it certainly leaves a lot of details to be filled in after the fact.

    I agree that the document was clearly written by non-lawyers. The outcome is as we have it: a vague process for enforcing ambiguous undertakings without any protections under the basic rules of natural justice.

    It could be seen as an aspirational document if it were written and presented as such. But it's not. There is nothing informal about the Standing Committee being able to make infallible judgments and impose relational consequences without right of appeal or review.

    An aspirational document which defines the Anglican Communion at its best and calls us to live into that might be valuable. But that's not what we have on offer.

  5. What would this level of ambiguity do to an ordinary contract? How incompetently does a contract have to be written before it ceases to be recognized as a contract?

    I can't see the secular courts in the US doing anything whatsoever to enforce this covenant if TEC signs up, since they would have to rule on religious questions, and I would be somewhat surprised if TEC's ecclesial courts overturned whatever GC decides. And what relational consequences could be imposed at the international level beyond what has already been imposed on TEC without the Covenant's authorization?

    All in all, my impression is that it will either be an abject failure (especially if provinces try to use it to require other provinces to act as the first set would prefer), or a decision will be made it will vanish essentially without a trace, or it might possibly do some good if the Standing Committee pushes provinces to do more listening to and with each other as is happening through things like the Indaba process.

    As for voting on it, the wisest course is to be honest about our reservations, possibly through signing statements like Ireland's, and keep a sharp eye on how other provinces vote on it. After all, we don't get to pick how others respond to our own actions, and it would be better to avoid unnecessarily offending our brothers and sisters elsewhere in the world.

  6. I'm not sure I can answer your questions, Dunstan. But it seems to me that when you enter into a contract you do so in good faith, having done due diligence and having come to an informed conclusion that the contract is fair and that it demonstrably meets the need that it is supposed to address.

    If your due diligence says that the contract is unfair and/or doesn't meet the need it is supposed to address and/or is likely to cause more problems, then why would anyone sign the contract?

    And is signing the contract with what you term a signing statement truly good faith? Is it not a unilateral amendment to the terms of the contract?

    As to enforcement, I can't think of a civil court that would have jurisdiction either to enforce or invalidate the Covenant.

    With respect to further possible relational consequences, those suffered by the Episcopal Church and the Anglican Church of Canada to date are still relatively mild. Since relational consequences are undefined in the proposed Covenant (another problem), it seems the sky is the limit, up to and including explusion from the Anglican Communion and recognition of an alternative Church in the same territory. I believe that is the goal of ACNA.

    I respectfully disagree with you about voting for teh COvenant and issuing provisos. It's an attractive idea, because it signifies that we would be trying to be as co-operative as possible, whilst still addressing our concerns. But as I suggest above, is that truly acting in good faith? And can we really have 38 different versions of the Covenant in play? Would that be a Covenant in any meaningful sense?

  7. I can see the need for due diligence, that's why professionals hire lawyers to write and vet their contracts. The Communion chose not to go that way, however, which makes the Covenant more like an agreement between roommates or family members. Thus the questions about whether it really makes sense to approach it as a legal document. Actually, since enforcement is the biggest problem with the current Covenant, going with 38 different Covenants is probably better than going with one Covenant, at least if the goal is to keep the Communion running. After all, it would make it clear to those paying attention that there functionally isn't a covenant, while enabling each of the provinces to semi-truthfully claim to have been true to the covenant process. Then we can either start focusing more clearly on doing the listening work we need to do or create a new covenant drafting group composed of lawyers and diplomats to fix the mess created by the legal amateurs on this past covenant drafting group.

    On relational consequences, what makes you think that the Communion couldn't vote out and replace TEC and/or the ACoC even if we refuse to sign up to the Covenant? After all, the ACO has already imposed relational consequences without our agreeing to the Covenant. Fortunately, the votes probably aren't there in the ACC for that course of action.

  8. Where to start, Dunstan?

    First, I would suggest that it's not the "Communion" that chose not to go the way of due diligence (if that is an accurate phrase) because there really isn't a mechanism for the Communion to choose anything. The process leading to the proposed Covenant has been driven by the Anglican Communion Office and the Archbishop of Canterbury. And in my view the process has been severly flawed and very rushed. The results speak for themselves.

    I think it would be a mistake not to treat the Covenant as a legal document. Once a Church adopts the COvenant, it is bound by it. You can't sign an agreement and then later decide you don't want to fulfil your obligations without suffering some kind of consequences.

    As to due diligence, that's what each Church is (or should be) in the process of doing. Failure to do so does not excuse them from the obligations they take on if they adopt the agreement.

    As to relational consequences, you're right that suspensions and exclusions could be applied and have been applied without a Covenant. But by adopting the Covenant we would be legitimizing any future imposition of Relational Consequences, and setting in place a process to arrive at such consequences which doesn't pass a basic smell test.

    Whether there should be a covenant, any covenant, hasn't really been debated. But adopting this Covenant, even with some kind of signing statement or set of provisos, in hope of subsequently amending it or even replacing it with something better is a pipe dream. If this Covenant isn't what we want, then we should reject it. The only reason to adopt it, in my view, is because we have come to the conclusion that it will do what it purports (i.e., stregthen the Anglican Communion with out changing it, and restrain the exercise of autonomy without interfering with autonomy), and that it will do so in a manner which is demonstrably just and fair.

  9. "You can't sign an agreement and then later decide you don't want to fulfil your obligations without suffering some kind of consequences."

    And who would have the job of imposing those consequences? The same folks who have already demonstrated that they don't care what the provinces have and have not agreed to? If they will be imposed regardless of whether we sign up to the Covenant it's hard to see that they can really be described as consequences for failing to meet our obligations.

    While we're at it what are these obligations? Are they clear (and objectionable) or are they part of the lack of clarity which makes the proposed Covenant such a bad legal document?

    If we have to choose between getting kicked out and turning our backs on the Communion, it would be better to get kicked out. Besides, if we can delay getting kicked out long enough things like the Indaba process might ensure that we don't get kicked out at all. If we leave, or act in ways which most of the rest of the Communion interprets as turning our back on the Communion ("optics" matter), then we will have ruled out any such outcome.

  10. If we have to choose between getting kicked out and turning our backs on the Communion, it would be better to get kicked out.

    Whether we adopt the Covenant or not is certainly being painted as a test of our loyalty to the Anglican Communion and the Archbishop of Canterbury in some quarters, but this narrative is not intrinsic to the Covenant document. It strikes me as a form of blackmail.

    Yes, the ACO and ABC have unilaterally imposed relational consequences already, but to sign on to the Covenant would be to legitimize that sort of action. And agreeing to a process that is intrinsically unjust and unfair makes no sense to me at all.

    The lack of clarity with respect to the obligations in the Covenant is worrisome. It is unwise, to say the least, to sign an agreement when you don't understand what you are committing to. In order to adopt the Covenant (if that is what the General Synod wants to do) it is essential to understand the obligations therein, to know whether those obligations are compatible with the existing doctrine and discipline (polity) of the Anglican Church of Canada, and to know what changes would be required in our constitutional and canonical framework in order to put the Covenant into full effect. Otherwise we would simply be signing a blank cheque.

    If the Covenant is meaningless, there is no point in adopting it. (See my earlier post along those lines.) And if it's not meaningless, then it's essential to understand the meaning before taking on the obligations in it.

    The decision to adopt or not adopt the Covenant must be made based on the document itself and the reasonably foreseeable outcome of implementing it. To ignore those aspects and simply adopt the Covenant based on perceived optics, or under the pressure of blackmail would be irresponsible. If I am correct to understand the Covenant as constitutional or quasi-constitutional, the question arises whether we want to make undesirable changes to our constitutional framework simply to avoid giving the incorrect impression that we are in any way disloyal to the Anglican Communion. The Covenant is not the Communion.

  11. Yes, this business hinges on whether the Covenant is a constitutional document or not, and I see very little reason to think it is. Everything from the fogginess of the obligations to the total lack of a plausible enforcer (the ACO isn't plausible primarily because they've demonstrated that they're focus is trying to keep grumblers happy and partially because they lack the authority to impose the most serious penalties) suggests to me that, while the drafters may have initially intended to create a constitutional document pulling more power to some center in the Communion, the covenant we now have is better seen as a brief summation of the spirit of Anglicanism and principles we all ought to try to live by with a (poorly crafted) dispute resolution mechanism attached.

    If I am correct, then the only point of assenting to the Covenant is the symbolic value, which isn't about showing loyalty to the ABC: it's about reaffirming for the smaller and less powerful provinces that the "big boys" are listening to their concerns and taking them seriously.

    Perhaps the only way to really test this is to see how the other provinces, especially the CoE, are treating the covenant. If we're the only ones considering making constitutional and canonical changes as part of signing up to the covenant, then we can probably skip making those enabling changes without anyone else complaining. Also if the covenant is a constitutional document, then the CoE will probably need to make changes that require Parliament's approval and I trust Parliament to have clever enough lawyers to keep the ABC from skipping that step.

    Alternatively, if a sizable chunk of the Communion rejects the covenant, and especially if the CoE rejects the covenant, it will be a lot easier for TEC to reject the covenant without others plausibly insisting that we did so because we don't care about what goes on in the rest of the Communion.

    Incidentally, the problem with trying to reject the covenant while reaffirming our commitment to the Communion is precisely that we cannot force others to react as we would prefer. Whatever happens each province will interpret our actions for themselves based at least in part on what they've been hearing from everywhere else in the Communion.

  12. Yes, politically we can't control how others perceive what we do. I am certainly aware of the optics of the North American churches rejecting the Covenant if everyone else signs on. I would personally love to see someone else decide against it first. But ultimately we each have to decide for ourselves.

    We can decide not to call the Covenant a legal document, but in my view that would simply be Humpty Dumptyism. Whatever we want to call it, it is a legal document, and that will come to bite us the first time a question is raised.

    The fundamental question is whether we want to adopt this Covenant with all its inherent weaknesses. If we do so, we had better be prepared to live with the consequences.

  13. Last I heard, a law's meaning depended more or less entirely on the interpretation of the body tasked with enforcing the law, so if the provinces decide that the covenant doesn't require constitutional or canonical changes then the covenant doesn't require such changes even if that position seems ridiculous based on the text of the covenant itself. After all, whose going to make us behave otherwise?

  14. Autonomy does mean that each church can choose to implement the Covenant in its own way. Of course, if these are incompatible with each other, then we hardly have an agreed-upon set of standards, do we? In what way would that be anything like what was proposed as a mechanism to bring us together? If the Covenant is so vague that it can mean 38 different things, then what?

  15. Are the provinces prepared to ignore the differences? As long as no concrete action has to be taken based on the phantom agreement, believing that we agree on "all the important points" could significantly reduce conflict in the Communion. And if the provinces aren't prepared to overlook the differences then we will simply have to spend another decade debating what the Covenant requires of each province. Eventually we will come to agreement, even if it is only that the Covenant is irrelevant, and we can take the time as long as it doesn't prevent us from also discussing the pressing issues in and for the Communion.

    Of course if most of the provinces happen to agree about what the Covenant requires, then things could get sticky for those who hold a minority opinion, but it is always possible to turn around and repudiate the Covenant if only by the province's actions.

  16. I don't understand why we would participate in an agreement without intending to fulfil the commitments therein. Aside from such an action being hypocritical, it would also create a situation in which any given Church would either have to live with outcomes of an arbitrary process (to which it had agreed) or withdraw from the Covenant and live with the consequences of that action.

    Signing the Covenant in hopes of deciding later that it is irrelevant makes no sense to me. Jesus tells us to let our "yes" be "yes" and our "no" be "no." If any given Church adopts the Covenant it should be with the full intention of abiding by its requirements and with truly informed consent. If any Church is not prepared to do so, having given the document serious consideration, then it should reject it.

    I have been doing what I can in my little corner to press for serious study of the Covenant. Based on that study I personally oppose it, because in my view it does not bear scrutiny. I hope that it will be very carefully scrutinized by my Church and by all Churches, and that they let it stand or fall based on that scrutiny rather than politically-based narratives of what adopting or not adpoting the Covenant means.

  17. What about conditional assent, or assent with a signing statement in which we explicitly say that we are agreeing based on a specific interpretation? Either would avoid hypocrisy. Alternatively, we could make affirming noises and poll the rest of the provinces to see what constitutional and canonical changes they are making to enable to covenant.

    The challenge before us isn't what to do with the covenant: the challenge is how to bring about the best possible outcome from the circumstances in which we find ourselves, and we aren't limited to up/down votes on the covenant to bring about that best outcome, especially since no outside authority is in a position to limit our options.

  18. I think that if a church were to adopt the Covenant with some kind of condition or signing statement that says, in effect, "we adopt it as long as it doesn't mean what it says," then it's really not adopting the Covenant.

    I think the real problem is that no-one wants to be the first formally to reject the Covenant. Your comments suggest to me that you agree fundamentally with my argument that the Covenant is not palatable as a legal document or binding agreement, but that you don't relish the optics or potential political fallout of TEC formally rejecting the Covenant. Is that a fair comment on my part?

    If so, and if rejection of the Covenant is not considered to be a valid option, then it seems to me that there are only three possible courses of action: (1) ignore any and all misgivings and adopt the Covenant as is come what may; (2) use some kind of weasel-worded formula to give the impression of adopting the Covenant without doing so, either by using a different verb (Ireland), appending a signing statement (South East Asia), or attaching some kind of conditions to the adoption; (3) defer any action indefinitely.

    None of those options sounds particularly honest or courageous to me.

  19. You're correct about my feelings on the Covenant, but I wouldn't characterize a signing statement as saying "we adopt it as long as it doesn't mean what it says". On the contrary, if the provinces can agree that an implausible interpretation is the correct one, then the fact that the text looks like it says something else is irrelevant. Sure the text constrains the range of possible interpretations, but, if the politics of the situation requires a face-saving implausible interpretation, then the agreement can diverge considerably from the careful reading of the text. True, it isn't especially honest or couragous, but politics and life in community require all sorts of compromizes. At least a signing statement is relatively honest about trying to change the meaning of the document.

  20. OK, how about "we adopt it as long as it measn this." The point here is that if a signing statement is intended to change the meaning of the Covenant there are two problems:

    First, it is possible that every Church will adopt the Covenant with a different signing statement. Thus we have not one Covenant but as many as 38. In that case, the concept of having an agreed-upon statement is lost.

    Second, it won't matter what the signing statement says when it comes time for the Standing Committee to rule on a controversial action. What will matter is the Standing Committee's interpretation of the Covenant, and on this question the Standing Committee is infallible, as its rulings cannot be appealed.

    The notion of signing statements or other forms of conditional assent suggests to me that in the cold light of day the current draft of the Covenant is not yet ready for adoption. As the various Churches begin to study the document in earnest, its shortcomings are being revealed. That being the case, perhaps the best option is to send it back for more revisions, or even rethink the project entirely.

  21. It would be lovely to send the covenant back for further revision, but I'm not sure that option is practically available, especially without some face-saving way for its strong supporters to embrace the revision. Giving conditional assent or partial assent, as New Zealand did initially, might be a way for that to happen, especially if it becomes clear that none of the non-GAFCON provinces want a centralized judiciary in the Communion.

    Also, while it is true that the covenant gives the Standing Committee final authority in recommending relational consequences, it is also true that the Standing Committee is a political body composed of representatives of each region of the Communion drawn from the representatives each province sends to the ACC. As a result, if the provinces agree on any point about how the covenant is to be interpreted, it is all but certain that the Standing Committee will hold the same opinion. Besides, at the moment there are two Americans on that committee, including the PB, and I trust them not to be completely stupid about dealing with disagreements.

  22. Yes, there are indeed two Americans on the Standing Committee now, and they are both very fine people. But they will not be there forever, and there are no guarantees about future staffing of the Standing Committee. The reasonableness of the outcome of a process shouldn't depend soleley on who happens to be around at the time.

    You are correct to say that there is no mechanism for revision of the Covenant now. It's in "take it or leave it" mode.

    Much though it pains me to suggest it, I don't think there is a face-saving way to deal with the shortcomings of the proposed Covenant. Partial or conditional adoption, or adoption with a signing statement, merely creates confusion. And adoption in the hope of future amendment is problematic, because it puts the mess into place to be cleaned up later, if later ever comes.

    I think the only solution is to admit that what we have isn't what we need, and then start the process over again from first principles, beginning with a serious discussion about alternatives. The first step in doing that will be widespread reection of the Covenant.

  23. Very interesting comments and article.


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