By Mark McCall

Last month the Anglican Consultative Council began operating under a new constitution. One of the four “instruments of Communion,” the ACC was created by the 1968 Lambeth Conference as an advisory council composed of lay, clerical and episcopal representatives of the churches of the Anglican Communion. The four instruments — the Archbishop of Canterbury, the Lambeth Conference, the Primates’ Meeting, and the ACC — have distinct but complementary functions in the life of the Communion.

The ACC usually meets every three years and has consisted of approximately 70 members, almost all of whom are directly appointed by the Communion’s 38 member churches. The membership criteria favor lay participation, and at the last meeting of the ACC the laity formed the largest group. To assure wider representation there are “term limits” restricting members to three meetings. The ACC thus serves as a complement to, but not a replacement for, the other instruments that emphasize the central role of bishops in a Communion that recognizes the historic episcopate as an essential element.

In the 1970s the ACC authorized its standing committee to form a charitable trust in the United Kingdom to manage its U.K. assets “on behalf of” the ACC. The standing committee members became the trustees of this trust. After the Primates’ Meeting was created as the fourth instrument and established its own standing committee, it became the practice of the two standing committees to meet together to help coordinate the two instruments. These joint meetings gave rise to the name “Joint Standing Committee,” but in fact they remained two separate committees and the primates were not trustees for purposes of the U.K. trust. Those matters continued to be addressed by the ACC committee alone. As the Communion has struggled to cope with the crises of the last two decades, various Communion commissions have recommended reform of the ACC and its standing committee. In addition, changes in U.K. law have resulted in legal advice to revise the legal structure of the U.K. charity. The result of these considerations was the recent incorporation of the ACC itself as an English company with the Articles of Association of that company becoming the ACC’s new constitution.

One noteworthy aspect of this process is that the new constitution was never disclosed for public review and comment although it was several years in development. Even those making inquiries were told it could not be disclosed while the ACC was consulting with the U.K. charity commission. It was only on July 12, when the certificate of incorporation of the new English company was issued, that the new constitution was made public, and even then disclosure was by the Registrar of Companies for England and Wales, not by the ACC. The ACC finally published the new constitution on its website on July 24. The Anglican Communion Institute, Inc., an independent think tank, has published a detailed analysis of the new constitution that raises five concerns. First, ACI notes, the new constitution has changed the legal structure of the ACC from an international unincorporated association not tied to U.K. law to an English company governed by U.K. and EU law like any other English company. It is incongruous that, at the same time the Church of England was itself raising concerns about the effects of new U.K. and EU equalities legislation on religious liberty, steps were being taken to incorporate the ACC under U.K. law and possibly subject one of the Communion’s instruments to those same regulations. Significantly, there is a provision in the new ACC constitution that recognizes the possibility that standing committee members may have civil partners.

ACI emphasized that it did not question the legal advice that the appropriate legal structure for the entity responsible for managing the Communion’s U.K. assets is a company limited by guarantee, but concluded that “we are not at all persuaded, however, that this legal entity should be one of the Communion instruments itself and that 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.” ACI noted in particular the role of the Communion’s primates, who bear special responsibility for “doctrinal, moral and pastoral matters that have Communion-wide implications.”

ACI’s second concern with the new ACC structure is that it reverses the traditional relationship between the full ACC council and its standing committee. Under the old ACC constitution, the powers of the standing committee were derivative of those of the full council. The standing committee had the power to act for the council between meetings of the full council and to execute matters referred to it by the council, but the standing committee’s legal role was derivative of (and lesser than) the full council. Under the new constitution, however, it is the standing committee that has primary management authority and it is the full council that has a lesser and secondary role.

Put simply, the English company that now constitutes the ACC is composed legally of the members of the standing committee, not the full council. Not only are the standing committee members the full membership of the company, they are also the company’s directors, giving the standing committee the entire legal power to manage the company. The Joint Standing Committee has been abolished, moreover, with the primate members becoming part of the ACC standing committee and subject to the ACC constitution and the fiduciary duties to the ACC that entails.

Nor is this merely a matter of legal formalities. The powers of the standing committee are now broader than those of the full council, now called the “Plenary Sessions,” which are said to be “in addition to” the meetings of the standing committee, which are the only meetings of the company’s members recognized by English company law. For example, the authority of the full council is now limited to matters dealing with the unity of the Communion, while the standing committee’s authority is broader and not subject to this limitation. The standing committee is also given the power to enact rules regulating the plenary sessions, including regulating the elections of standing committee members. It is not clear whether the full council could overturn these rules even if it voted overwhelmingly to do so. The wording of the new constitution suggests not.

The third concern is that the new ACC constitution infringes on the authority of the other instruments of Communion, which traditionally have been independent of the ACC. The new constitution includes a definition of the Primates’ Meeting that defines that instrument by reference to the ACC membership schedule. This is a marked departure both in theory and practice from the historic understanding of the Primates’ Meeting since the Archbishop of Canterbury has exercised discretion in deciding which primates to “gather” for this meeting and has not generally followed the ACC schedule in doing so.

The new ACC constitution also attempts to impose diversity criteria on the primates in selecting the primates’ standing committee. They are to “have regard to” diversity between regions and sexes in appointing their members. The new constitution also infringes on the traditional prerogative of the Archbishop of Canterbury to appoint members of Anglican commissions by giving the ACC authority to establish these commissions. It is significant that at last December’s meeting of the ACC’s standing committee it considered measures to regulate the governance of the Lambeth Conference and the frequency of Primates’ Meetings.

The fourth concern is that the new constitution reduces the role of the member churches in the ACC. In addition to redefining the ACC for legal purposes so that the members appointed directly by the member churches are no longer part of the legal entity, the new constitution also eliminates the requirement that amendments to the constitution be ratified by the member churches.

The last concern raised by ACI is that the new constitution appears not to be consistent in important respects with the new Anglican Communion Covenant, completed only last December. The Covenant not only reflects the traditional understanding of the ACC as the body composed of the members directly appointed by member churches; it also defines a Communion that recognizes “the central role of bishops as guardians and teachers of faith,” that has four coequal instruments retaining their historic independence and control of their own memberships, and that is not subject to a central executive authority like that into which the ACC standing committee is evolving.

In light of these concerns, ACI asks the Communion to resist these innovations in the ACC constitution and to follow instead the vision for the Communion’s future embodied in the Anglican Communion Covenant.

Mark McCall is a member of the Anglican Communion Institute’s advisory committee. He lives and worships in the Diocese of Albany.