THE communiqué issued by the Primates in Canterbury last week does not bind anyone, because the Primates’ meeting has no jurisdiction, a canon lawyer said this week. It represented “completely unacceptable interference” with the autonomy of the bodies to whom it had issued requirements.
“I find it utterly extraordinary,” the director of the Centre for Law and Religion at Cardiff University, Professor Norman Doe, said on Tuesday. “No instrument exists conferring upon the Primates’ meeting the jurisdiction to ”˜require’ these things. . . Whatever they require is unenforceable.”
The communiqué states that the Primates are “requiring that, for a period of three years, the Episcopal Church [in the United States] no longer represent us on ecumenical and interfaith bodies; should not be appointed or elected to an internal standing committee; and that, while participating in the internal bodies of the Anglican Communion, they will not take part in decision-making on any issues pertaining to doctrine or polity”.
Professor Doe confirmed: “The decision will not bind anyone ”” not the Episcopal Church. There is no question of that.” It was for the bodies referred to in the communiqué to determine what, if any, consequences the Episcopal Church should face, he said.
The communiqué constituted “completely unacceptable interference with the autonomy of each of these bodies as they transact their own business”. It was “absolute nonsense” to suggest that an ecumenical body such as the Anglican-Roman Catholic International Commission (ARCIC), or an Anglican body such as the Anglican Consultative Council, be bound by a decision made by the Primates’ meeting.
The Anglican Consultative Council is the only instrument of the Communion with a written constitution. Professor Doe suggested, however, that, in the light of the communiqué, the Archbishop of Canterbury could feel “bound” not to invite the Episcopal Church to the Lambeth Conference.
The events of the past week highlighted the consequences of the Communion’s failure to adopt the Anglican Covenant, Professor Doe suggested. He spoke as a member of the Lambeth Commission, which had proposed the Covenant and helped to draft it.
[blockquote]The communiqué issued by the Primates in Canterbury last week does not bind anyone, because the Primates’ meeting has no jurisdiction, a canon lawyer said this week. It represented “completely unacceptable interference†with the autonomy of the bodies to whom it had issued requirements.
“I find it utterly extraordinary,†the director of the Centre for Law and Religion at Cardiff University, Professor Norman Doe, said on Tuesday. “No instrument exists conferring upon the Primates’ meeting the jurisdiction to ‘require’ these things. . . Whatever they require is unenforceable.â€[/blockquote]
Well, one hesitates to query the opinion of Professor Doe of that centre of windbaggery, Cardiff Law School, but my recollection is that the Primates Meeting was indeed given authority by the Instruments back in the day of or prior to the Windsor Report to deal with and take action in relation to the situation created by the actions of the North American provinces but it would require someone to remember where the exact references are.
There is no point in asking Lambeth Palace as it no longer has any corporate knowledge or memory. It is now staffed by bright, enthusiastic and ignorant young people who have been there for at least five minutes.
Does anyone else remember chapter and verse for the references?
[blockquote]Professor Doe confirmed: “The decision will not bind anyone — not the Episcopal Church. There is no question of that.†It was for the bodies referred to in the communiqué to determine what, if any, consequences the Episcopal Church should face, he said[/blockquote]
Again, yes and no. Bodies such as ARCIC do indeed make their own rules and procedures, but appointment of members to serve on it is the prerogative of in our Anglican case the instruments of the Anglican Communion, not individual provinces so far as I am aware. Assuming that it is the case that it can be shown that the Primates Meeting has the authority set out above then it would indeed be the case that the communique is authoritative on this point.
[blockquote]The Anglican Consultative Council is the only instrument of the Communion with a written constitution. Professor Doe suggested, however, that, in the light of the communiqué, the Archbishop of Canterbury could feel “bound†not to invite the Episcopal Church to the Lambeth Conference.[/blockquote]
The United Kingdom does not have a written constitution. Is Professor Doe asserting that its laws and rulings are therefore not binding?
There may indeed be a case for codification of areas of responsibility in something like the Covenant, though that has its flaws, but it does not follow that the Instruments [and the Primates Meeting] in the absense of a written constition have no authority granted to them nor a right to adjudicate on the consequences of actions by member provinces.
There is of course a question mark over what impact the Dublin Primates Meeting Communique has in all this and its demotion of the status of the Primates Meeting to a council of advice to the Archbishop of Canterbury. Justin Welby was an active participant as a Facilitator in this process – perhaps he can tell us whether the authority of the Primates Meeting granted previously by the Instruments survived his and Rowan Williams’ actions at Dublin. Most people including this recent gathering seem to be just assuming that Dublin was an abberation, but the situation is unclear.
[blockquote]He predicted that there would be “other cases like this: stimulating litigation, jeopardising ecumenical relations, making people ill, wasting money. . . [/blockquote]
That sounds less like legal opinion to me and more like windbaggery.
Oh it stands in the great Anglican tradition as practiced by TEC: “You can’t tell me what to do!” We have long since determined that TEC is lawless. It ignores law and rules when it wants to and applies law and rules with gusto against its opponents when it wants to (and when it has the power to back them up and can punish its opponents.)
I suspect that ABp Welby could choose to ignore and not enforce the sanctions, and some TEC folk have already said that they will defy them. That could get interesting, since it appears that the primates are not going to allow another Dar es Salaam fiasco to occur.
1. If the primates have no authority, why are they called an Instrument of Communion?
2. Of the Instruments of Communion, the primates are the most representative of Anglicans of color, who are the vast majority of worldwide Anglicans. Doe’s claim could quite easily be interpreted as racism and colonialism.
3. TEC has exhibited a pattern of biblical lawlessness, creedal lawlessness, and canonical lawlessness. An investigation of some of its top leaders is under way, raising the question whether there has been civil lawlessness. I doubt their approach to a covenant would be any different.
Looking into it a bit, at least as far back as 2003 the Primates were citing an “enhanced responsibility” to deal with this situation:
[blockquote]Lambeth Primates Meeting Communique 2003
As Primates of our Communion seeking to exercise the “enhanced responsibility” entrusted to us by successive Lambeth Conferences
[/blockquote]
Subsequently in 2005, the Primates again used the enhanced authority granted by successive Lambeth Conferences together with the recommendations of the Windsor Report for the action they took in asking the Episcopal Church to withdraw from certain Communion functions until the next Lambeth Conference, something with which at that time the Episcopal church complied:
[blockquote]Dromantine Primates Meeting Communique 2005
Within the ambit of the issues discussed in the Windsor Report and in order to recognise the integrity of all parties, we request that the Episcopal Church (USA) and the Anglican Church of Canada voluntarily withdraw their members from the Anglican Consultative Council for the period leading up to the next Lambeth Conference. During that same period we request that both churches respond through their relevant constitutional bodies to the questions specifically addressed to them in the Windsor Report as they consider their place within the Anglican Communion. (cf.paragraph 8)[/blockquote]
So what is that enhanced responsibility referred to in both the minutes of the Primates Meeting and the Windsor Report?
The resolutions of the Lambeth Conference 1998 shed light:
[blockquote]Resolution III.6
Instruments of the Anglican Communion
This Conference, noting the need to strengthen mutual accountability and interdependence among the Provinces of the Anglican Communion,
a. reaffirms Resolution 18.2(a) of Lambeth 1988 which “urges that encouragement be given to a developing collegial role for the Primates’ Meeting under the presidency of the Archbishop of Canterbury, so that the Primates’ Meeting is able to exercise an enhanced responsibility in offering guidance on doctrinal, moral and pastoral matters”;
b. asks that the Primates’ Meeting, under the presidency of the Archbishop of Canterbury, include among its responsibilities positive encouragement to mission, intervention in cases of exceptional emergency which are incapable of internal resolution within provinces, and giving of guidelines on the limits of Anglican diversity in submission to the sovereign authority of Holy Scripture and in loyalty to our Anglican tradition and formularies;[/blockquote]
Mention is also found in the Windsor Report [Page 62]:
[blockquote]The Primates Meeting
5. The Commission is convinced that the Primates’ Meeting should continue to provide an important element in the life of the Communion as the body which affirms the resolutions of the Lambeth Conference in the life of Anglicanism. In that respect, the Primates’ Meeting should serve formally as the Standing Committee of the Lambeth Conference and as such should monitor developments in furtherance of resolutions of the Lambeth Conference in addition to the process of reception. This will allow the Primates’ Meeting to begin the enhanced responsibility which successive Lambeth Conferences have recommended. It should be a primary forum for the strengthening of the mutual life of the provinces, and be respected by individual primates and the provinces they lead as an instrument through which new developments may be honestly addressed.[/blockquote]
So the roots of the enhanced responsibility the Primates have been exercising has its roots at least back to the Lambeth Conference of 1988 [reiterated in 1998] and has been exercised in relation to the situation created by the North American Churches at least back to 2005. There may well be other citations in the resolutions of the Instruments and almost certainly other situations in the Communion where the Primates Meeting has exercised an enhanced authority granted to them, and certainly the Primates Meeting’s decisions have been complied with by the North American churches in 2005. There appears to both authority granted and a record of compliance and precedent for the action initiated in the 2016 Primates Communique.
Feb 2005 Primates meet in Dromantine, Ireland, to collectively examine the Windsor Report and produce a Communiqué calling on ECUSA and Canada to “voluntarily withdraw†their representatives from the Anglican Consultative Council (ACC) until Lambeth 2008 and to show that their regret and penitence was genuine by agreeing to halt both the actions which have shattered our common life until and unless a new consensus in the Anglican Communion emerges.
The Primates also commended the covenant in concept and asked the Archbishop of Canterbury to explore ways of implementing it.
Mar 2005 The Archbishop of Canterbury elects to implement the covenant proposal through the former Joint Standing Committee of the Primates and of the Anglican Consultative Council, which commissions a study paper, written by six people from the United Kingdom, convened by the Deputy Secretary General at the request of the Archbishop of Canterbury and the Secretary General.
June 2005 The ACC meeting in Nottingham voted to reconstitute the work of the Council within the framework of a limited liability company. It also upholds Lambeth 1.10 teaching on human sexuality and endorses the Primates’ request for ECUSA and Canada to withdraw their representatives from the ACC until the next Lambeth Conference.
The ACC forwards the Covenant for Communion in Mission to those bodies of the Anglican Communion tasked to consider an Anglican Covenant as commended by the Windsor Report and the Statement of the February 2005 Primates’ Meeting.
Mar 2006 The consultation group on the Covenant commissioned by the JSC produces Towards an Anglican Covenant, that introduces the ACC into the picture as having shared rights of final approval over a covenant draft:
Well, if we follow the professor’s logic, the Primates had no authority to impose a 3 year moratorium on the Instruments of Communion officially recognizing that TEC left the Anglican Communion in 2003.
So, should TEC try to force the issue at ACC, ACC could, in turn, vote to remove TECs representatives immediately. Or dissolve the Communion, or whatever else they want to do.
The part TEC does not get is that the vote was not between “should there be consequences or no consequences,” but between “should we cease to recognize TEC as a member altogether as of today, or should we remove their voting delegates from various committees and give them 3 years to think about it?” Keep in mind that reports are that 15 primates voted for the first option. And those 15 represented at least 2/3 of the members of the Communion. And those 15, plus another 11 or 12, voted for the second option- something like 85% of the members.
One hopes that the various Primates will inform and instruct their ACC delegations to act in concert with the Primates meeting. Assuming the information given to and relayed by +Jack Iker is accurate, the vote in ACC would be something along the lines of 52 to 7 with some abstentions, if they use the same criteria as the Primate from their province.
It has been pointed out to me that there is a full analysis of the sources of the authority of the Primates Meeting and the dysfunction of the ACC and Dublin Meeting by ACI members and lawyers here. I would commend reading it in full as an accurate statement of where we still are, and how we got into this situation:
QUOTE
Dublin Post-Mortem
Written by: The Anglican Communion Institute, Inc.
Friday, February 4th, 2011
By
The Reverend Canon Professor Christopher Seitz
The Reverend Dr. Philip Turner
The Reverend Dr. Ephraim Radner
Mark McCall, Esq.
…..From the outset, the Primates’ Meeting was intended as a mechanism for coordinating with the Archbishop of Canterbury the other activities of the Communion. Thus, the request in the first Lambeth Conference resolution (1978 Res. 12) was:
[blockquote]The Conference asks the Archbishop of Canterbury, as President of the Lambeth Conference and President of the Anglican Consultative Council, with all the Primates of the Anglican Communion, within one year to initiate consideration of the way to relate together the international conferences, councils, and meetings within the Anglican Communion so that the Anglican Communion may best serve God within the context of the one, holy, catholic, and apostolic Church.[/blockquote]
Significantly, 1978 resolution 12 followed immediately after Resolution 10, which affirmed the traditional teaching on human sexuality, and Resolution 11:
[blockquote]The Conference advises member Churches not to take action regarding issues which are of concern to the whole Anglican Communion without consultation with a Lambeth Conference or with the episcopate through the Primates Committee, and requests the Primates to inititate a study of the nature of authority within the Anglican Communion.[/blockquote]
In 1988, the Lambeth Conference went further:
[blockquote]This Conference:
2.(a) Urges that encouragement be given to a developing collegial role for the Primates Meeting under the presidency of the Archbishop of Canterbury, so that the Primates Meeting is able to exercise an enhanced responsibility in offering guidance on doctrinal, moral and pastoral matters. (Res. 18.2(a).)[/blockquote]
This request was then reiterated in 1998 when the Conference:
[blockquote](a) reaffirms Resolution 18.2(a) of Lambeth 1988 which “urges that encouragement be given to a developing collegial role for the Primates’ Meeting under the presidency of the Archbishop of Canterbury, so that the Primates’ Meeting is able to exercise an enhanced responsibility in offering guidance on doctrinal, moral and pastoral mattersâ€;
(b) asks that the Primates’ Meeting, under the presidency of the Archbishop of Canterbury, include among its responsibilities positive encouragement to mission, intervention in cases of exceptional emergency which are incapable of internal resolution within provinces, and giving of guidelines on the limits of Anglican diversity in submission to the sovereign authority of Holy Scripture and in loyalty to our Anglican tradition and formularies;[/blockquote]
Gradually during the 1980s and 1990s, the Primates’ Meeting began to exercise the responsibility the successive Lambeth Conferences had requested. Meeting in London in October 2003, all the Primates, including the Archbishop of Canterbury, accepted the responsibility given to the Primates’ Meeting by the Lambeth Conferences and undertook “to exercise the ‘enhanced responsibility’ entrusted to us by successive Lambeth Conferences.â€
UNQUOTE
It is also worth reading the analysis of the shortcomings of the Dublin Primates Meeting the same ACI analysis contains:
[blockquote]what is most remarkable about the Dublin meeting is that its working document on the Primates’ Meeting cites only the preliminary remarks of Archbishop Coggan, but makes no mention whatsoever of the subsequent work done to implement those remarks by the Lambeth Conferences and the Covenant in specifying the role of the Primates’ Meeting, work that by now has been accepted by all the Instruments of Communion. As far as one can discern, this established understanding played no role at all in the deliberations at Dublin. While one might try to parse the provisions of the Dublin document to align it to greater or lesser extent with the accepted precedents, the simple fact is that those other sources were not acknowledged, were not quoted and were not even the subject of obvious paraphrase. Those meeting in Dublin staked no claim to continuity with the past, ignoring the will of the most authoritative of the Instruments of Communion—the Lambeth Conference of Bishops.
For all these reasons, the group of Primates who met in Dublin cannot be recognized as acting in accord with the accepted Communion understanding of the Primates’ Meeting as an Instrument of Communion. This Instrument thus joins the others as now being dysfunctional and lacking in communion credibility. The role of the Lambeth Conference as an Instrument of Communion is to “express episcopal collegiality worldwide.†But in 2008, when the bishops of most Anglicans “worldwide†were not present, it could not perform this function. It accomplished little of substance and is now regarded throughout much of the Communion as a symbol of futility. Similarly, the Anglican Consultative Council has been re-structured legally so that it is no longer recognizable as the Instrument defined in the Covenant or in past Anglican documents. The role of the Archbishop of Canterbury as an Instrument of Communion is to function as “a primacy of honor and respect among the college of bishops,†as “a focus and means of unity,†and the one who “gathers†the Lambeth Conference and Primates’ Meetings. Whatever may be said about the cause of the disintegration, it is incontrovertible empirically that Canterbury has been unable to perform this function over the last three years. The Communion thus finds itself with no working Instrument that has been able to perform its necessary function, follow its rules, and garner credible acceptance from the majority of the Communion. [/blockquote]
It seems to me that the defiance of TEC is a denial of status as part of the “one, holy, catholic and apostolic church” which has been led by bishops as one of the marks of that apostolic connection. Defining the faith through recently-invented quasi-legislative body (ACC) is a major break with tradition, an effort by the provinces with the money to subvert the tradition.
Note also that TEC whines about those nasty bishops from icky places like Africa while, over the past few years, it has allowed its own bishops to ignore canon law and common charity.
Next up, the worldwide Methodist General Conference in May. . . .
The African churches, who are a numerical majority, have thus far blocked the Americans from forcing The New Thing on Methodists.
Wonder what sort of games we are going to see in May?
The Primates meeting does not have any legal jurisdiction – that is quite true. Neither does anyone else.
Substitute “Archbishop of Canterbury” or “Anglican Consultative Council” or “Lambeth Conference” for “Primates” in Professor Doe’s remarks, and they are just as true.
The Anglican Communion consists of 38 legally independent provinces. None of them have any jurisdiction over the others, and neither does the Archbishop of Canterbury have any jurisdiction over them.
In that light, we can see where Professor Doe is making some fundamental mistakes:
[blockquote] “The communiqué constituted “completely unacceptable interference with the autonomy of each of these bodies as they transact their own businessâ€.” [/blockquote]
If the Primates have no power, then how can they be interfering with anyone’s autonomy? Think about it – perhaps Prof. Doe can complain about them “purporting to interfere with TEC’s autonomy”, but not about them actually doing it. And that is obviously absurd – the Primates demands are predicated on the assumption that TEC is free to reject them if it chooses, i.e. it has autonomy.
[blockquote] “The Anglican Consultative Council is the only instrument of the Communion with a written constitution.” [/blockquote]
So what? Any entity can have a constitution or not have a constitution, as it pleases. The only reason the ACC has a constitution is because it registered itself as a UK charity, in order to get tax deductions for its members. That doesn’t mean it has any power or jurisdiction over the Anglican Communion or any of its provinces.
[blockquote] “What we have with the Primates’ meeting is an assumption of authority which has no basis in law.” [/blockquote]
Thanks for a statement of the blindingly obvious, Professor Doe – since the Primates never suggested they had a “basis in law”, why bother us with this? The apostle Paul never claimed to have a basis in law when he wrote his letters either.
[blockquote] “He predicted that there would be “other cases like this: stimulating litigation, jeopardising ecumenical relations, making people ill, wasting money. . .”[/blockquote]
I am very sorry to hear that this is going to affect public health – I assume Prof Doe has some medical knowledge to back up that assertion. But how is it going to “stimulate litigation”? There is nothing at all in this that a court would touch with a barge-pole. The primates have said what they require. TEC can reject them if it likes. If so, it may find that eventually no other provinces are associating with it but no legal consequences will apply, and no-one has suggested that they will.