ACNA Civics Sidebar: Whose law is it anyway, Part III
The Provincial Council's Rules of Order
Warning: more commentary-heavy than usual.
The Provincial Council of the Anglican Church in North America is set to begin this coming Monday (June 16-June 20). I recently wrote about a canonical amendment that is going to be put before the Council, which aims to codify into canon the de facto process of originating legislation currently used by the ACNA. In that process, legislation does not originate with the Council members, but with a committee that is appointed by members of the church’s executive branch and that is unaccountable to the Council. Potential legislation is also subject to several layers of veto before Council members may even know of its existence — this in spite of ACNA’s Constitution conceiving the Council as the “governing body”1 of the church with power to “make canons.”2 If you haven’t read that post, please do: I think the Council’s decision on the matter will be important.
Today I’m going to talk about a related subject from a different angle. Last time, I said that the proposed amendment raises questions about who makes the laws in the ACNA, because it shifts authority to a non-Council-accountable group; the result is that the Council’s legislators cannot legislate. This time, I’ll talk about another set of procedures that shift authority from the Council, also leaving it unable to legislate: the Rules of Order of the Provincial Council itself.
Rules of Order — I hear some of you complaining already! Is there possibly a more boring subject? Aren’t the details of motions and seconds and agendas the domain of wonks detached from reality, canon hobbyists and wordsmiths (pejorative)? But I promise it’s worth a look, so please stick with me. On Detestable Enormities I aim to be neutral and explanatory, but given the impending Council meetings which readers of this blog may care to follow, here I will not withhold my view: I find the Rules to be defective. I’ll tell you why.
The Rules of Order
Church synods, conventions, and the like are more than parliamentary bodies, but they are not less than parliamentary bodies; and parliamentary bodies have procedure. In general, legislative houses have power to create their own rules for how they conduct their meetings, as long as they are compliant with higher statutes — so in this case, the Rules of Order of the Provincial Council would be expected to be compliant with the Constitution & Canons of the ACNA, but otherwise, the body has a free hand to run meetings according to its own Rules.
Despite this power, parliamentary bodies in the English-speaking world flow out of a long history of Anglo-American common law tradition, and church bodies are no different from secular ones in this respect. One should always be a bit circumspect, then, when a given rule breaks harshly with tradition — or when a break results from several modified rules’ interaction —, though local and organizational adaptation is both common and healthy. (It is, of course, impossible here to accurately characterize all details of all parliamentary systems upstream in the tradition, so we will speak in general principles, which may have different technical expressions from system to system.)
Why have Rules at all? The parliamentary tradition cites several excellent reasons: so that meetings can be conducted in an orderly manner; so that all voices may be heard in free debate, with the majority being forced to at least listen to the minority before deciding; so that all members may know what is going on at any given time; so that the organization as a body, not just the individual who is at its head, decides its own business; so that all may have confidence that decisions were secured in a fair manner. The value of procedural breaks with tradition should also be measured against the spirit of principles like these.
Want to see the Rules of the Provincial Council? Here they are — three pages, quite streamlined. This last publicly available copy of the Rules dates from last year’s 2024 Provincial Council. This copy is also the first publicly available copy of the Rules. I’m unaware of any publications of the Rules before 2024, and have not yet seen one for 2025. In my opinion, this is troublesome — the people who elect the members of their governing body have the consistent right to know the rules by which that body operates.
More troublesome than the lack of transparency, though, are the contents of the Rules themselves and their implications for what the Council may do. Let’s examine a few.
I. The mighty Chair
The Chair, or presiding officer, of any assembly has an important role: to lead the body through making its decisions in an orderly manner. But it is a mistake to think the Chair is the boss of the assembly. The Chair is rightly conceived as the servant of the assembly, facilitating its business.
In the Provincial Council’s Rules of Order, the Archbishop serves as Chair (unless he, or the Executive Committee in his absence, designate someone else pro tem).3
Power to the Chair
The Rules grant several powers to the Chair. In addition to the usual duties of presiding officers, like granting the floor to one member at a time and putting questions to the assembly for a vote, he unilaterally appoints a Secretary to keep minutes, a Parliamentarian to advise him on procedural matters, and other officers and committees he “deems necessary.”4 He may call a recess of up to three hours.5 And if any situation arises that the Rules do not have provision for, the Chair has discretion for how to proceed.6
These powers are expanded from the norm. It’s more usual for members of the assembly to elect their own officers,7 and the formation of committees typically has the assembly much more in the loop, with the necessity of a committee’s existence being decided by the assembly, not the Chair.8 Likewise, the assembly decides when to recess and break off whatever it is currently discussing, not the Chair.9
Given that the Rules are quite short, it is normal to consider that something might happen that they don’t foresee. Organizations with their own simple rules often provide for a backstop in these cases by saying that if one happens, procedures from standard parliamentary systems like Robert’s Rules of Order apply.10 This keeps the advantages of a simple system with the assurance of a neutral, consistent, and time-tested way of deciding unforeseen issues. But by giving this discretion to the Chair rather than a dispassionate external source, the Rules clear the way for a Chair to direct the assembly rather than facilitate its decisions.
Power away from the assembly
Most sets of parliamentary procedure recognize that the duties inherent in leading the meeting make the presiding officer powerful, and they accordingly introduce procedural checks from the assembly to ensure tyranny does not reign from the Chair. But many of these common protections are absent or outright forbidden in these Rules.
For example: what if the Chair breaks the rules, or does not stop another member from breaking the rules, whether accidentally or on purpose? The fundamental recourse a member usually has in this situation is to rise to a point of order. A member can even interrupt another member this way, without waiting to be recognized to speak by the Chair, and the Chair must rule immediately on the matter. This is a powerful protection of the individual rights of members — a single one may stop the entire show if someone misbehaves. The principle is stated in Robert’s Rules (and well-attested in other systems)11:
It is the right of every member who notices a breach of the rules to insist on their enforcement. If the chair notices a breach, he corrects the matter immediately; but if he fails to do so—through oversight or otherwise—any member can make the appropriate Point of Order.12
If the Chair rules that there was no breach of order, and a member disagrees, the Chair’s decision can be appealed and overridden. It is well worth stopping at this point to ask a question: to whom does the appeal go? The answer is: to the assembly. The Chair has neither unquestionable discretion nor the final word. A majority vote of the assembly can override his ruling.13
In the Provincial Council Rules, though, points of order are forbidden:
All questions of order shall be decided by the Chair, subject to being overruled by a vote of the Members at the call of any Member. There are no Questions of Privilege or Points of Order; all procedural questions are merged into an appeal of the Chair’s decision.14
This is a fundamental removal of power from the assembly. It means the members have no ability to interrupt if another member is pontificating in an out-of-order manner. It also raises the stakes by forcing members to use an appeal to raise any issue. Instead of a quick, impersonal, maybe even routine interruption to call out an error, it requires a member to decide to marshal the whole assembly against the Chair — a more overtly political act for which the will may be difficult to muster, given that the Chair is the Archbishop. Removing the point of order removes the cultural expectation of vigilance by all members, and reinforces the wrongheaded idea that the meeting is not theirs, but the Chair’s.
Forbidding points of order is the first and greatest removal of assembly checks on the chair, and there is a second like unto it. When a matter comes for a vote, the Rules always require a voice vote first. Then,
The Chair shall rule on whether a motion is carried or not. If the Chair is in doubt, or if requested by ten Members, the Chair shall call for a show of hands.15
The Chair’s judgment of whether a voice vote was conclusive can only be challenged by ten members on the floor. This is far outside parliamentary norms for dealing with inconclusive voice votes. Other systems recognize power in the members to ensure their vote has been taken faithfully, and that power to initiate a clearer count (like show of hands or rising in one’s place) often even resides in an individual member, who might rise after a dubious vote and call, “Division!”16 Here too a single person can stop the show and prevent the assembly from being railroaded. But these Rules require ten people to exercise the fundamental right to an accurately counted vote, literally decimating the assembly’s power to check the chair. It is not clear from the Rules how the ten members ought to make the request for division. Should each objecting member rise at the Chair’s ruling, and hope that nine others will too? Must each of the ten be recognized by the Chair individually? Coordination is impossible, since members are not allowed to “hold any private discourse while the meeting is in session.”17
These Rules, then, concentrate an unusual amount of power in the Chair and disempower the Provincial Council the Chair is supposed to serve.
II. Setting the agenda
Imagine that you are a member of the Provincial Council, and there is an item you very much want the Council to discuss at its next meeting. The question of how to get it onto the agenda becomes very important.
In the Rules, Rule 1 provides:
The organization and agenda [of the Provincial Council] shall be determined by the Executive Committee. Any ten (10) Members of the Council may have an item or items included on the agenda before the meeting is called to order.18
So you must gather nine others to propose any business — already a high bar.19 But procedure here is under-furnished. How should the ten communicate their item, and to whom? And what will happen once it is communicated? In the case of legislation, one might argue that it would go through the usual process of being considered by the Governance Task Force (currently appointed by the Archbishop) and subject to several layers of extracanonical veto (by the Executive Committee, the Archbishop, the College of Bishops, and the Governance Task Force itself) — but this process, which the GTF is now asking the Council to codify into law, may kill the measure before Council members ever even hear about it, much less successfully get it onto the agenda.
III. Free debate
Free debate among the members of the assembly is the obvious cornerstone of any deliberative body. All parliamentary systems, for the purposes of good order, have to establish a way to give the floor to members who would like to speak, usually through recognition by the Chair, one at a time, with speeches relevant to the topic and respectful in tone; and these Rules are no different:
Members shall rise to be recognized by the Chair. A Member arising to speak shall with due respect address the Chair, and shall not address the Council or another Member except with permission from the Chair. In debate Members shall confine themselves strictly to the point in debate. No member shall speak more than twice in the same debate in the same session without specific leave by a vote of the Council.
So far so good; very standard. But typical safeguards are missing. There is no statement here that the chair has any obligation to recognize a member who rises, no provision for if multiple members rise, and no regulation of recognizing speakers by any preference (i.e. for or against the proposition being debated). All these things belong in a rule like this, and other systems explicitly provide for them.20 Without them, one might imagine the Chair unfairly manipulating who is recognized and allowed to speak in front of the others.
“Just because the Rules don’t list those details explicitly doesn’t mean they aren’t in force, and you’re stressing about nothing,” I hear some objecting, about this and other omissions. “Lots of things aren’t explicitly detailed in these Rules, but seem presupposed as implicit. The Rules don’t even state that members can make motions; but this is implied by background understanding of what a parliament is. So too with how the Chair recognizes those rising to speak.”
This argument has some merit. A legal interpreter might reach for a trusty interpretive principle that justifies implied powers or procedures: where design has been distinctly stated no place is left for construction.21 The design of the Provincial Council is clearly parliamentary and deliberative, since the Constitution & Canons establish the Council as having power to “make canons”22 and “deliberate upon matters affecting the interests of the church [and] approve policies accordingly.”23 The Rules also themselves feature motions, quorum, a Chair, and the like; this too indicates parliamentary design. Therefore, goes this argument, there is no room for the scary interpretation that the Chair is permitted to recognize speakers outside of the usual fair ways in absence of enumeration of the fair ways, because a fair Chair recognizing speakers fairly is intrinsic to the parliamentary design of the Council. Nothing to worry about.
What undercuts this argument, in my view, is Rule 15 again:
Whenever these Rules fail to provide direction for a particular matter before the Council, the Chair, with advice from the Parliamentarian, shall determine the procedure to be applied.24
This rule says that any explicit gaps in the Rules are eligible to be filled by the Chair’s decision on what to do. How the Chair recognizes members to speak is one such gap. According to Rule 15, the Chair decides himself what procedure he should use, and members do not have recourse. (Is his decision subject to appeal? The Rules do not say — and we are in the same hole.) The discretion this rule gives to the Chair is far too broad and undermines members’ ability to resort to common law expectations of how parliaments should run, hindering their right to free debate.
Lastly, it needs to be pointed out that at least for the past several meetings of Provincial Council, the Governance Task Force has chastised members in advance against “wordsmithing [canonical changes] from the floor.” With due respect, many people simply call that “legislating.” The pejorative warnings to Council members against doing their jobs, on behalf of the everyday clergy and laity they represent, are sadly enforceable by the Rules and serve to curtail free debate.
If you are a member of the Council — a legislator by dint of sitting in a body that legislates — it is difficult to get your item onto the agenda. It is difficult to amend the items others put before you, because you may be ruled out of order for “wordsmithing.” And you have no recourse that does not involve trying to mobilize the entire assembly against the Archbishop through appeal, and who wants to stick out their neck for that? These attitudes work hand in hand with the Rules to produce ineffective legislators — disempowered members whose momentum can be frustrated and dissipated by the Chair at the first sign of going the wrong way.
IV. What could possibly go wrong?
Up until now we have been somewhat abstract, referring to principles and systems. Now I would like to do something different and offer some concrete negative scenarios that could well arise under these current Rules. This is not to say that any individual is likely to make such scenarios come to pass, but to highlight that they are not adequately defended against today.
The Council has a controversial amendment before it. The Chair, who favors the amendment, recognizes several members in a row who support it and allows them to speak extensively. He simply passes over and does not recognize those he knows to be opposed. Because he has passively ignored them, there is no concrete decision for any member to appeal, and members have no recourse. The amendment passes, because the Council never heard any of the good opposing arguments.
A group of ten members muster up an item to be placed on the agenda before the Council meeting. They email it to the Executive Committee, remembering that they set the Council’s agenda. The Executive Committee does nothing, because in its opinion the submission ought to have gone to the Governance Task Force, even though the item is not strictly a canonical amendment. The item does not make it onto the agenda.
A heated debate is taking place on the floor of the Council, and a consensus is forming to take action in a way the Chair does not favor. The Chair unilaterally calls for a recess of 3 hours. A few champions of the consensus, likely to convince the Council, have to leave in 2 hours to make their flights back home. Momentum is scuttled, and the vote does not pass.
A voice vote seems close, but with the noes clearly making more noise in the end than the ayes. The Chair says that the ayes have it and quickly moves on. You know this is not right, but have no idea how to gather nine others who think so too. In the five seconds you were thinking about it, the Chair has moved onto other business, and it’s now too late to raise your objection.
You see on the agenda that the legislative block is scheduled for about 30 minutes. The Chair recognizes a member to speak against a proposed amendment who would like special permission to speak for 25 minutes. The Rules have no regulation of how long members may speak, so it falls to the Chair to decide whether it’s okay. The Chair is also against the amendment and, knowing this will run out the clock, allows the member to filibuster.
None of these scenarios have any recourse for the members in real time, and leave the governing body of the church unable to govern.
A different way
One theme that I hope is clear from this extended look at the Provincial Council’s Rules of Order (thank you for sticking with me!) is that none of this has to be this way. The main things that make the Rules defective are in fact departures from well-established tradition — the Anglo-American parliamentary tradition that is passed down from the British parliaments and the common law and is historically inseparable from Anglican notions of governance. Happily, this means that restoring the functionality of the Rules is a matter of returning to parliamentary principles that already exist — not reinventing the wheel and solving problems no one has ever thought about before.
Representative governance and freedom of debate, with decisions deliberated on and made by bishops, clergy, and laity together, is the historic and traditional inheritance of all American Anglicans. Just look at this stirring passage from the first Constitution of the Protestant Episcopal Church in the United States of America (today TEC), all the way back from 1785, four years before the foundation of the United States Congress:
I often hear extreme skepticism of procedural detail in church circles. “The church’s one foundation is Jesus Christ her Lord,” some say, “not Robert and his Rules.” And while it’s true that arcane parliamentary procedure can be weaponized, it is not wise to streamline procedure so much that it creates gaping holes and allows power to fall into the hands of the less principled, removing recourse from the more principled.
A good, little-c conservative principle often cited in political discussions is Chesterton’s Fence:
There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
The Rules in their current state represent many fences knocked to the ground and scattered around the roads. Literal adoption of the several hundred pages of Robert and his Rules isn’t necessary to restore the spirit of items like points of order, regulated recognition by the Chair, regulated paths to getting legislation to the Council floor without preemptive veto by people not accountable to the Council, and delegation of uncharted-waters procedures to a neutral external manual.
These items come to Anglican churches today from a long history of people having hit all the problems it is possible to hit. They are traditional. And it is beyond time for all American Anglicans today to get back in touch with this oft-neglected element of their own tradition.
ACNA Constitution & Canons, Article VII.1
Article V
Rule 3
Rule 16
Rule 15
Robert’s Rules of Order Newly Revised (RONR), 12th ed., 47:2. “In most societies it is usual to elect the officers from among the members”. Mason’s Legislative Manual (Mason’s), Sec. 588. “It is an almost invariable rule in legislative bodies of the United States that the bodies have full authority concerning the selection of their officers. They can select their officers in the manner they choose and remove them at any time without notice or hearing.”
RONR 50:1. “A committee, as understood in parliamentary law, is a body of one or more persons, elected or appointed by (or by direction of) an assembly…” 50:13.d. “When the chair appoints a committee… the chair must announce the names of the committee members to the assembly… and until such announcement is made the committee cannot act.” Mason’s Sec 600.2-3. “The usual method of appointing special committees is for a motion [of the assembly] to be adopted stating the purpose of the committee, the number of members, and directing the presiding officer to appoint the members.” Erskine May 40.3. “Notice is required of all motions relating to the appointment of select committees. A new select committee may be appointed by two separate motions [in the House], the first setting out the committee's orders of reference… and the second nominating the members, and giving the committee any necessary powers.”
RONR 20:5. “The privileged motion to Recess… must be seconded… [and] requires a majority vote.” Mason’s Sec. 216. “Requires a majority of the legal votes cast.”
A few random examples: Wisconsin Association of School Board Rules of Order Sample Policy, “In the absence of any specific legal requirement or any rule of order that has been established by the Board, Robert's Rules of Order (including those procedures and procedural flexibility that Robert’s allows for small boards) shall apply to the conduct of Board meetings.” Rules of Order and Procedure of the Fayetteville City Council, “In the event a matter is not covered by the ‘Procedural Rules for Arkansas Municipal Officials,’ the most recent edition of Robert’s Rules of Order shall apply.” Sault Ste. Marie Tribe of Chippewa Indians Tribal Code Chapter 14: Rules of Parliamentary Procedure Ordinance, “In all cases not covered by these Rules of Parliamentary Procedure, the Board of Directors and Subordinate Boards shall look to the applicable rules contained in the current edition of Robert’s Rules of Order Newly Revised.” McGill University Board of Governors Rules of Order and Procedure, “These rules and Bourinot’s Rules of Order, Part II shall be the authority in questions of order and procedure, unless the Statutes of McGill University stipulate otherwise. … In any matters of dispute not covered by these Rules, or Part II of Bourinot’s, the Chair’s decision will prevail unless overturned by a resolution properly put and approved.”
Mason’s Sec. 240. “It is the duty of the presiding officer to enforce the rules and orders of the body without delay and without waiting to have his attention called to breaches of order. It is also the right of every member who notices a breach of order or of a rule to insist upon its enforcement. This is called raising a question or point of order, because the member puts to the presiding officer the question as to whether there has been a breach of order or of the rules, it being the duty of the presiding officer to maintain order and enforce the rules.” Erskine May 21.49. “The Speaker is under a duty to intervene to preserve order but may refrain from intervening if considering it unnecessary to do so. If the Speaker does not intervene, however, whether for the above reason or because it is not perceived that a breach of order has been committed, it is the right of any Member who thinks that such a breach has been committed to rise in their place, interrupting any Member who may be speaking, and direct the attention of the Chair to the matter. A Member speaking to order must simply direct attention to the point complained of, and submit it to the decision of the Speaker. If the Speaker is of the opinion that the words or conduct complained of are disorderly, the Member will be called upon to conform to the rules of the House.”
RONR 23:3.
RONR 24:3, “ A majority or a tie vote sustains the decision of the chair on the principle that the chair’s decision stands until reversed by a majority.” Mason’s Sec. 234, “One-half of the legal votes cast, a quorum being present, sustains a decision of the presiding officer on appeal. A tie vote sustains the presiding officer since a majority is required to overrule his decision.”
Rule 14.
Rule 10.2.
RONR 4:52. “… any member (without a second) has the right to require that a voice vote (or even a vote by show of hands) be retaken as a rising vote… A member can demand a division from the moment the negative votes have been cast until the result of the vote has been announced or immediately thereafter. To do so, the member, without obtaining the floor, calls out the single word ‘Division!’ or ‘I call for [or ‘demand’]" a division,’ or ‘I doubt the result of the vote.’ The chair must then immediately take the rising vote.” Mason’s Sec. 532.5-7, “A member who doubts the accuracy of a viva voce… may demand a division or verification of the vote. … This call or demand may be made without being recognized. It is made by saying, ‘I call for a division,’ or ‘I doubt the vote,’ or simply by calling out, ‘division.’ It does not require a second… As soon as a division is called for, the presiding officer should proceed again to take the vote, by first having the members voting in the affirmative rise, and after they have been counted and are seated, by having the members voting in the negative rise and be counted…” Erskine May 20.60, “When each section of the House has responded, the Speaker endeavours to judge from the loudness and general character of the opposing exclamations, or from a consideration of the probabilities of the case, which side has the majority. As the Speaker's judgment is not final, the Speaker expresses their opinion by saying: ‘I think the “ayes” (or “noes”) have it’. If the House acquiesces in this decision, the question is said to be ‘agreed to’ or ‘negatived’ as the case may be, but if those declared to be the minority dispute the fact, they respond with further exclamations of ‘aye’ (or ‘no’). The Speaker will then say, ‘Division. Clear the lobby,’ in order to start the process of counting the numbers on each side, which is termed a division.”
Rule 6.
RONR understands items to be put before the assembly via motion of a single member, with a second agreeing that it should be considered. When the item to consider is legislation, Mason’s understands that any one member may present a measure (Sec. 726, “The regular formal manner of introducing bills and other measures is for the member, in the appropriate order of business, to rise at his desk and secure recognition and to then present the measure…”). In the US House of Representatives, “Any member … may introduce a bill at any time while the House is in session by simply placing it in the ‘hopper’ at the side of the Clerk's desk in the House Chamber.” In the UK Parliament, “Government bills are introduced by members of the Government; and Private Members' Bills are introduced by any other Members. No procedural distinction is made for legislation introduced by groups”.
RONR 42:2, “Before a member in an assembly can make a motion or speak in debate, he must claim the floor by rising and addressing the chair … and must be recognized by the chair. The chair must recognize any member who seeks the floor while entitled to it.” 42:6, “… all other things being equal, the member who rose and addressed the chair first after the floor was yielded is entitled to be recognized.” 42.9: “In cases where the chair knows that persons seeking the floor have opposite opinions on the question… the chair lets the floor alternate, as far as possible, between those favoring and those opposing the measure.” Mason’s Sec. 91.3-4, “The first member rising and requesting recognition is entitled to the floor over others. When two or more members ask recognition at the same time, the first one rising is entitled to prior recognition. … it is the custom for the presiding officer to alternate between those favoring and those opposing the pending question.” Erskine May 21.8, “When two or more Members rise to speak, the Speaker has complete discretion over whom to call, though backbench [rank-and-file] Members will generally be called alternately from either side of the House.”
Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vanderbilt Law Review 395 (1950)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol3/iss3/4
Article V
Canon 1.1
Rule 15.