Written by: The Anglican Communion Institute, Inc.
Thursday, August 12th, 2010
The Reverend Canon Professor Christopher Seitz
The Reverend Dr. Philip Turner
The Reverend Dr. Ephraim Radner
Mark McCall, Esq.
Michael Watson, Esq.
Yesterday the Anglican Communion News Service published an interview with Canon John Rees, legal advisor to the Anglican Consultative Council, that responded in part to questions we previously raised in our paper, “Contrasting Futures for the Anglican Communion: A Transformed ACC and the Anglican Covenant.” We are grateful to the Anglican Communion Office, Canon Rees and the ACNS for responding directly on this matter of wide interest and for their renewed commitment to transparency in the process of structural reform now underway in the Communion. We continue to believe that these changes raise significant questions, that many of these questions remain unanswered, and that these questions should be considered throughout the Anglican Communion. We emphasize that the questions we raise below are not posed to Canon Rees alone, but are addressed more broadly to all those interested in the future of the Communion.
1. Canon Rees begins by providing helpful background to the constitutional changes recently implemented at the ACC. He notes that one of the objectives of the new Articles was to eliminate personal liability to which the trustees responsible for managing the Communion’s charitable assets might be exposed. As we emphasized in our original paper, this is an objective we fully share. But reiterating this objective does not address the concern we raised, which was instead whether “this legal entity should be one of the Communion Instruments itself and [whether] the fiduciaries charged with overseeing these charitable activities should be the same as those comprising one of the bodies responsible for faith and order in the Communion.”
Surely no one wants the trustees exposed to personal liability. But are we equally certain we want those who share responsibility for faith and order in the Communion to be those same charitable trustees having fiduciary duties under the charity law and legal duties imposed by the Companies Acts? In our paper, we emphasized in particular the role of the Communion’s Primates, who bear special responsibility for “doctrinal, moral and pastoral matters that have Communion-wide implications.” These are not duties recognized by English company law or even by the new ACC Articles.
We noted in our paper that the ACC as originally conceived did not contemplate that it would itself become an English company or even an English charity. At its second meeting in 1973, the ACC authorized the formation of an English charitable trust for the purpose of owning “on behalf of the Council” all “property and funds situated in the United Kingdom.” We have now come to the point that the ACC, at its creation an international unincorporated association not necessarily tied to UK law, has itself become completely identified legally with that charitable property-holding entity, now an English company governed by UK and EU law like any other English company. Has there been informed debate in the Communion on this transformation? Even if this is the appropriate legal vehicle for an affiliate that owns UK property, is this the best structure for a Communion Instrument having responsibilities relating to faith and order?
2. One of our concerns with the new Articles is that they reverse the traditional relationship between the full ACC council and its standing committee, giving the standing committee primary management authority and the full council a lesser and secondary role. Canon Rees responded to this concern by saying:
That’s very wide of the mark. The drafting committee took care to ensure that the plenary meeting of the Council would continue to have the same democratic rights to appoint the Standing Committee that it always had in its unincorporated state. The wider membership attending the plenary meetings of the ACC every two or three years remains the body which appoints its members of the Standing Committee and entrusts the Committee with the Council’s work in between its meetings.
But this response only highlights that the full council, formerly the consultative body itself that functioned as one of the four Instruments, is now a body whose primary legal responsibility is to appoint the standing committee. Canon Rees also notes that the standing committee members are now not only the trustees for charity law purposes but also the company directors for company law purposes. He does not acknowledge, however, what was a primary concern expressed in our paper: only the standing committee members are now the members of the new company that constitutes the ACC and only they are responsible under the law for company governance. Other UK church-related charities converting to limited company status have done so without demoting former members to remove their status as legal members, including some with membership that far exceeds that of the ACC.
In fact, taken together Canon Rees’ response raises more questions than it answers. Why were only the standing committee members made the legal members of the new company? What legal function does the full council have other than electing the standing committee? Does UK company law impose additional governance restrictions on the ACC not specified in the Articles, such as a 75% vote by the standing committee to approve changes to the Articles? Does this voting requirement supersede the provisions in the Articles or are the different provisions cumulative? If the opportunity was taken to re-define the ACC’s objects, why were those of the full council made narrower than those of the standing committee? And most importantly, is this relationship between the ACC and its standing committee, a committee that was briefly identified as the “Standing Committee of the Anglican Communion,” one that the Communion finds appropriate for the role of one of its four Instruments? Given the lack of transparency during much of this process, it is doubtful that informed consideration was given to these often technical issues by the member churches.
3. We also raised in our original paper the concern that the new ACC Articles potentially infringe on the other Instruments, especially the Primates’ Meeting and the Archbishop of Canterbury, in that they reflect an assumption that the other Instruments can be governed in some way by the ACC’s Articles. We were concerned that this might be claimed as a precedent for using the ACC constitution to control the other Instruments in the future. Canon Rees responded by saying that:
Neither the Archbishop’s role as the pivotal Instrument of Communion, nor his role in calling together the Primates’ Meeting (which itself has no formal constitution) are in any way restricted by these Articles. As the Archbishop’s Registrar for the Province of Canterbury, I would have been very concerned if I had thought there was any intention to do so.
We share Canon Rees’ concern over any infringement of the other Instruments by the ACC Articles and are reassured by his comments. We noted in our original paper that the Archbishop has not in the past been guided by definitions in the ACC membership schedule in gathering the Primates’ Meeting. We understand Canon Rees to be stating that the Archbishop retains this discretion unfettered by the new ACC Articles. If this is not what he intended, we hope he will clarify how the Archbishop’s role is not “in any way restricted by these Articles.”
We also note Canon Rees’ assurance that the diversity criteria imposed on the Primates “at best can operate only as an aspiration.” This too raises several questions. Why should the Primates’ aspirations be determined by the ACC? Since the Primates only became part of the ACC and its standing committee in 2009 when the new company structure was approved how can this diversity aspiration be derived from the former constitution? And to return to the issue that lies behind many of our concerns: how confident can we be that these diversity criteria—characterized as mere aspirations—will continue to be viewed so benignly now that the ACC is a company governed by UK company law under which these provisions acquire the force of law?
4. As we have noted often in recent months, we share Canon Rees’ “unease” over the impact of British equalities legislation on religious bodies, especially the ACC. Our understanding is that the scope of religious exemptions from these regulations has been the source of controversy between the UK government and EU authorities and that this issue will not be settled without further judicial decisions. We are neither as sanguine about the future scope of these exemptions nor as resigned to their applicability to the ACC as is Canon Rees. Interestingly, Canon Rees points to the Church Mission Society as another religious body that has adopted the structure of an English company, but it is significant that it has also adopted and incorporated into its constitution a robust declaration and ethos statement that articulate its core values, a key element in considering the application to a particular entity of any religious exemption to the equalities laws. As CMS notes:
One factor behind the Ethos Statement was the necessity to have an official document in response to European legislation which safeguarded the right to employ only persons in sympathy with the aims and ethos of a society engaged in evangelistic mission.
Notwithstanding its role as a Communion Instrument responsible for faith and order the ACC has no comparable ethos statement other than the provisions of Lambeth resolution 1.10 and the Communion moratoria, which the standing committee has refused to implement in a consistent way. How will the exemptions to the equalities regulations be applied to the ACC in the future?
More importantly, Canon Rees simply assumes that the ACC is an entity that must be governed by UK law. We disagree. The ACC was conceived as an international association. The Church of England is one of its members, but no different in this respect than any other. Although the Archbishop of Canterbury is the president of the ACC, this is a role defined by Communion agreements, not Church of England canons or British secular law. Obviously, to the extent the ACC owns property or operates in the UK it must comply with UK law. But the same is true of any other country in which it might operate or own property. This limited aspect of the ACC’s purpose need not dictate all other matters. One traditional way associations and corporate bodies have dealt with this problem has been to create separate structures for the purpose of property ownership and the legal duties such ownership entails. TEC itself, and many of its dioceses, operate in just this way. In an era of widespread concerns over encroachments on religious liberty-especially concerns, now shared by Canon Rees, that were not yet apparent when the ACC embarked on this restructuring eleven years ago-the choice of an appropriate legal entity and appropriate governing law must not be dictated by secondary objectives or, worse, by default. Protection of religious liberty and the integrity of faith and order must be at the forefront of these considerations.
5. Although this is not a matter we raised in our original paper because we are not privy to the underlying facts, Canon Rees acknowledges that changes were made to the new Articles after they were approved by the Communion’s member churches. Canon Rees says that these changes were not “major” or matters of substance. But legal details matter! That is why the member churches have lawyers. Can it ever be appropriate for the ACC to adopt a new constitution that has not been approved in final form by its churches? Is this even effective legally? To resolve legitimate concerns about the ratification process, it would be helpful to know what member churches consented to the new Articles, when they did so, what explanatory material was provided to the member churches with the request for consents and what changes were made after receiving consents.
6. Finally, we note that our original paper dealt in large part with the possible incompatibility of the new Articles with the Anglican Covenant now being considered by the member churches. Canon Rees does not even mention the Covenant in his interview, notwithstanding the fact that he has just rendered legal advice to the standing committee in response to a question raised by the province of Aotearoa, New Zealand and Polynesia suggesting that the Covenant and ACC constitution are not compatible. This advice has not been made public even as the Covenant is being considered for adoption by the member churches. How can they make an informed decision on adoption when this issue has been addressed by the legal advisor but not all the churches have been informed of the answer? And the larger question for the member churches is this: should the member churches ever acquiesce in allowing their Covenant to be, in effect, unilaterally modified through interpretation by the ACC’s standing committee or by UK law? Or should they instead insist that the Covenant is the standard to which the Communion Instruments are accountable?
7. To summarize, Canon Rees’ remarks only underscore the extent to which proper debate on these pressing issues has never occurred. The final text was not seen even by the member churches until disclosed last month by the Registrar of Companies. The proposed Articles were never posted for public comment and debate at any point in the process. The effect of equalities legislation enacted in the last year was not considered at all. Technical matters related to charity law have dictated decisions about the structure and governing law of one of the Communion’s Instruments. The intended scope of the new Articles with respect to the other Instruments remains murky at best. And the relationship of the new Articles to the Anglican Covenant has been discussed by the ACC’s standing committee, but the results of that discussion have not been disclosed to the member churches that are considering adoption of the Covenant. We urge the Communion as a whole, but especially its constituent churches, to begin considering these important issues as a matter of priority. To have the structural coherence it needs the Communion requires a broader focus than the management of UK charitable assets.
August 12 2010 12:17 pm | Articles