The role and significance of independence of State-based non-judicial grievance mechanisms under “Pillar 3” of the UN Guiding Principles on Business and Human Rights

A report commissioned by the Canadian Ombudsperson for Responsible Enterprise (CORE)

Author: Dr. Jennifer Zerk

25 May 2023

Table of contents

• Executive summary
• Part 1. Background, aims, scope and methodology
  • 1.1 Background
  • 1.2 Research objectives
  • 1.3 Methodology and scope
• Part 2. The UN Guiding Principles on Business and Human Rights
  • 2.1 What are the UN Guiding Principles?
  • 2.2 Status of UN Guiding Principles
  • 2.3 Relevance of UN Guiding Principles to the CORE
  • 2.4 The concept of “effectiveness” of non-judicial grievance mechanisms under the Guiding Principles
  • 2.5 How is the independence of State-based non-judicial grievance mechanisms relevant to their “effectiveness” under Guiding Principle 31?
  • 2.6 How is the independence of State-based non-judicial grievance mechanisms relevant to access to effective remedies for business-related human rights harms?
  • 2.7 How do State-based non-judicial grievance mechanisms establish and maintain their independence?
• Part 3. Discussion
  • 3.1 CORE’s independence from the Canadian Government
  • 3.2 CORE’s independence from business
  • 3.3 CORE’s independence from other stakeholders
• Part 4. Options for enhancing the independence of the CORE
  • 4.1 A new mandate
  • 4.2 The status quo
• Part 5. Conclusion
• About the author

Executive summary

This report has been commissioned by the Canadian Ombudsperson for Responsible Enterprise (the CORE).

The CORE has requested research and analysis

• regarding the role and significance of independence in providing access to effective remedy by the CORE, as a “State-based non-judicial mechanism” under Pillar 3 of the UN Guiding Principles on Business and Human Rights (the ‘UN Guiding Principles’); and
• which can form the basis for recommendations intended to strengthen the capacity of the CORE to provide effective remedies for business-related human rights harms.

The term “State-based non-judicial grievance mechanism” encompasses a wide array of State-based bodies relevant to business respect for human rights.  This diversity complicates the analysis of such mechanisms. More specifically, for present purposes, the range of non-judicial grievance mechanisms addressed by the UN Guiding Principles (and Guiding Principle 31 in particular) makes it difficult, if not impossible, to define the precise level of independence required for a grievance mechanism to be regarded as effective under the UN Guiding Principles.

Nevertheless, drawing from the UN Guiding Principles, and supporting OHCHR guidance, it is possible to identify the key features of the CORE’s present mandate, structure and organisational arrangements that may be either advantageous or disadvantageous from the perspective of establishing and maintaining independence, and to make some suggestions for improvements.

Part 1 of this report explains the background to this research project, its aims, scope and the research methodology used.

Part 2 outlines the key aspects of the normative background against which the research takes place.  Following a brief introduction to the UN Guiding Principles (sections 2.1 and 2.2), and a short discussion of how these relate to the CORE (section 2.3), it explores in more detail the concept of effectiveness (as defined in the UN Guiding Principles) (section 2.4), the relevance of a grievance mechanism’s “independence” to its overall “effectiveness” (section 2.5) and the various ways in which the degree of independence enjoyed by a grievance mechanism can affect its ability to ensure effective remediation outcomes for affected people and communities.  Section 2.6 provides an overview of the analytical framework used for the discussion in Part 3 by identifying three different “dimensions” of independence (i.e. from government, from business and from other stakeholders) and the key factors (foundational, governance-related, operational and legal) that can be relevant to each.

Part 3 presents the findings of the desk-based review of information made available by the office of the CORE. It identifies the various factors and features of the CORE’s present mandate, structure and organisational arrangements that may be either beneficial for, or undermining of, the CORE’s independence. This Part, which broadly follows the structure of the table laid out in section 2.6, is arranged into a series of bite-sized summaries, each followed by a short critique (presented as “observations”). It is noted that, as a body concerned with addressing allegations of human rights related harms, some special considerations apply in relation to engagement with affected people and communities, and these are explored more fully in section 3.3.

Armed with a better understanding of the various factors and features that may be problematic from the perspective of CORE’s independence (and hence “effectiveness”), and the interplay between them, Part 4 concludes the study by setting out a series of options for improvement.  These options have been developed based on two scenarios; one that depends upon the grant of a fresh mandate for the CORE, based on primary legislation (section 4.1), and another that assumes the continuance of the status quo (i.e. in terms of the CORE’s foundational arrangements, see section 4.2). A tabular format is used to help highlight the particular contribution to “independence” that each option could potentially make, some special considerations that may need to be taken into account, the linkages that may exist between different options, and relevant OHCHR guidance.

Part 4 does not provide recommendations on the optimal structural, institutional or governance arrangements for the purpose of enhancing CORE’s independence, these being matters of policy for the Canadian Government. Moreover, existing OHCHR guidance on the implementation of the UN Guiding Principles does not provide the basis for anything so prescriptive.  However, it is hoped that the options set out in this section, with accompanying preliminary observations as to their likely impact (or limitations), can help to provide the basis for fruitful internal discussions about ways to enhance CORE’s independence (and hence effectiveness as a State-based grievance mechanism under the UN Guiding Principles) in a range of future scenarios, as well as constructive stakeholder engagement on this important topic.

Part 5 concludes this report by drawing together 10 key factors identified in the course of this study with the most potential to undermine the independence of the CORE, as presently constituted.  It is noted that the lack of binding powers of investigation, while important, is only one aspect of a much more varied and complicated picture.  It also draws attention to some broader legislative trends – concerning transparency and mandatory human rights due diligence – which may have a bearing on the role of the CORE in future, as well as how it discharges its present mandate. 

In the meantime, as the CORE and relevant Ministers and government departments chart a way forward, it is relevant to note the guidance offered by the OHCHR in a 2018 report to the Human Rights Council specifically on the subject of State-based non-judicial grievance mechanisms, in which OHCHR calls on all States to:

“[conduct] a comprehensive review process and [consult] appropriately with stakeholders to determine (a) the range and types of State-based non-judicial mechanisms established in its jurisdiction that are relevant to respect by business enterprises of human rights; (b) whether their degree of independence, mandates, functions and powers are appropriate and sufficient, when analysed together with relevant laws and policies, to provide a legal and regulatory environment conducive to business respect for human rights; and (c) whether they meet the needs and sufficiently safeguard the rights of the individuals and/or communities for whom those mechanisms are intended.”

And to:

“[take] the steps necessary to correct any deficiencies identified with respect to the issues mentioned in … above.”^{Footnote 1}

Part 1. Background, aims, scope and methodology

1.1 Background

This report has been commissioned by the Canadian Ombudsperson for Responsible Enterprise (the CORE).

The CORE was established pursuant to Order in Council 2019-1323 with a mandate to:

• (a) promote the implementation of the UN Guiding Principles and the OECD Guidelines;
• (b) advise Canadian companies on their practices and policies with regard to responsible business conduct;
• (c) review a complaint that is submitted by or on behalf of an individual, organization or community concerning an alleged human rights abuse where the abuse allegedly occurred after the day on which the first Ombudsperson is appointed or, if it allegedly occurred before that day, is ongoing at the time of the complaint;
• (d) review, on the Ombudsperson’s own initiative, an alleged human rights abuse where the abuse allegedly occurred after the day on which the first Ombudsperson is appointed or, if it allegedly occurred before that day, is ongoing at the time of the review;
• (e) offer informal mediation services; and
• (f) provide advice to the Minister on any matter relating to their mandate, including issues related to the responsible business conduct of Canadian companies operating abroad.^{Footnote 2}

“Human rights abuse” is defined in the section 1(1) of the Order in Council as:

“an adverse impact on an internationally recognized human right — including any of the human rights that are referred to in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights — arising from a Canadian company’s operations abroad (atteinte aux droits de la personne).”

“Canadian company” is defined in section 1(2) of the same instrument as:

“an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province, or that is otherwise formed in Canada, that operates abroad in the garment, mining, or oil and gas sectors, and includes an entity that it controls and that operates abroad in the garment, mining, or oil and gas sectors.”^{Footnote 3}

These definitions effectively limit the scope of the CORE’s scope of action under (b), (c) and (d) above to the garment, mining and oil and gas sectors, though the CORE’s mandate under (a), (e) and (f) is arguably broader.

1.2 Research objectives

The CORE has requested research and analysis:

• regarding the role and significance of independence in providing access to effective remedy by the CORE, as a “State-based non-judicial mechanism” under Pillar 3 of the UN Guiding Principles on Business and Human Rights (the ‘UN Guiding Principles’); and
• which can form the basis for recommendations intended to strengthen the capacity of the CORE to provide effective remedies for business-related human rights harms.

1.3 Methodology and scope

This report has been compiled from desk-based research and analysis. This desk-based research has involved a review of a package of information made available by the office of the CORE, as well as further publicly available information relating to the CORE accessed through the author’s own internet and library searches.  The package of information provided by the office of the CORE encompassed information relating to:

• the CORE’s establishment, powers and mandates;
• the CORE’s relationships with other state bodies;
• the CORE’s scrutiny and accountability arrangements;
• tthe CORE’s budget setting and standard operating procedures;
• the process for the appointment of the CORE and other staffing arrangements and policies; and
• criticisms of the CORE made by stakeholders.

A draft version of this report was made available for comment by the CORE and members of her staff.  The current CORE, Ms Sheri Meyerhoffer, made herself available for interview. This final version was completed on the basis of the feedback and additional information received.

This report examines the role and importance of the CORE’s independence from other actors and entities (both State-based and non-State-based), given the CORE’s status as a State-based non-judicial grievance mechanism under the UN Guiding Principles.  Therefore, in addition to the UN Guiding Principles themselves, the analysis takes particular account of commentary and guidance on the implementation of the UN Guiding Principles emanating from the Office of the UN High Commissioner for Human Rights (‘OHCHR’), the agency responsible for leading the business and human rights agenda within the UN system.

In accordance with the author’s terms of reference, this report focusses specifically on the role and importance of independence in providing access to remedy. Therefore, a detailed consideration of CORE’s performance against the various other “effectiveness criteria” for non-judicial grievance mechanisms set out in the Guiding Principles (i.e. which may not be so squarely concerned with questions of independence of mechanisms) is outside the scope of this report. (For a complete list of these effectiveness criteria, see Box 2 below).

The research takes account of standards relating to the governance and conduct of public bodies, such as the Venice Principles on Ombud Institutions,^{Footnote 4} to the extent that these have informed the work of OHCHR with respect to the effectiveness of State-based non-judicial grievance mechanisms. However, a detailed consideration of the application of the Venice Principles to the CORE, and whether CORE has the requisite level of independence based on these principles, is beyond the scope of this report, this being the subject of a separate and complementary piece of research.^{Footnote 5}

The options set out in Part 4 of this report are based on the picture that emerges from this desk-based research. However, there may be other practices or experiences relevant to CORE’s degree of independence (including the extent to which this aligns to relevant international standards, and opportunities for improvement), that would require further empirical research (e.g. through interviews with the CORE, CORE office staff, relevant departmental officials and other stakeholders), to be explored fully.

This report does not constitute legal advice. Detailed consideration of the legislative changes that may be needed to implement the options set out in Part 4 of in this report is therefore beyond the scope of this research project. No claims are made in this report about the legal feasibility of any of these options; these are questions on which independent legal advice will need to be sought from Canadian counsel.

Neither does this report embark on a detailed consideration of the advantages and disadvantages of different structural, institutional or governance options, these being matters of policy for the Canadian Government. Instead, this report confines itself to pointing out, based on the information available thus far and desk-based analysis outlined above

• areas where CORE’s independence may be either sufficient or lacking (using the UN Guiding Principles and related OHCHR guidance as the relevant benchmark);
• the implications of this for alignment with the UN Guiding Principles (and specifically as regards access to remedy for business-related human rights harms);
• possible options for enhancing CORE’s independence and hence its effectiveness as a State-based non-judicial grievance mechanism dealing with business-related human rights harms; and
• issues on which obtaining independent legal advice may be beneficial.

Part 2. The UN Guiding Principles on Business and Human Rights

2.1 What are the UN Guiding Principles?

The UN Guiding Principles are the global, authoritative, normative framework guiding responsible business conduct and addressing human rights abuses in business operations and global supply chains.  They reflect a standard of practice that is now expected of all States and businesses with regard to business and human rights. They were endorsed by the UN Human Rights Council in June 2011.

Comprising 31 principles, the Guiding Principles rest on a “three pillar” structure as follows:

• Pillar 1: The 'State Duty to Protect’: Under international human rights law, States must protect against human rights abuses by private actors, including companies. This means States must prevent, investigate, punish and redress human rights abuses that take place in domestic business operations.
• Pillar 2: The 'Corporate Responsibility to Respect’: Companies have a responsibility to avoid
  infringing on the rights of others wherever they operate and whatever their
  size or industry and address any impact that does occur. This responsibility
  exists independently of whether States fulfil their own human rights obligations.
• Pillar 3: Access to Remedy: When abuses occur, those affected must have access to effective remedy, through judicial and non-judicial grievance mechanisms.

2.2 Status of UN Guiding Principles

While they do not constitute a legally binding instrument in their own right, the UN Guiding Principles elaborate on the implications of existing standards and practices for States and businesses, some of which are indeed binding as a matter of international or domestic law.  As OHCHR explains

“The Guiding Principles do not constitute an international instrument that can be ratified by States, nor do they create new legal obligations. Instead, they clarify and elaborate on the implications of relevant provisions of existing international human rights standards, some of which are legally binding on States, and provide guidance on how to put them into operation. The Guiding Principles refer to and derive from States’ existing obligations under international law. National legislation will often exist or may be required to ensure that these obligations are effectively implemented and enforced. This, in turn, means that elements of the Guiding Principles may be reflected in domestic law regulating business activities”^{Footnote 6}

The Guiding Principles receive extensive support from businesses and civil society as well as States.  A number of international and regional organizations have reflected them in their own standards, notably the OECD in its Guidelines for Multinational Enterprises (see chapter IV).^{Footnote 7}  The UN Guiding Principles have also been endorsed by many international and regional organisations, business organizations, civil society organizations, trade unions, national and regional institutions, multi-stakeholder initiatives, companies and other stakeholder groups.

2.3 Relevance of UN Guiding Principles to the CORE

The provisions of the UN Guiding Principles set out in Pillar 3 (Guiding Principles 25 to 31) explain the importance of State-based non-judicial grievance mechanisms for addressing and delivering effective remedies for business-related harms.

Guiding Principle 27 says:

“States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.”

The Commentary to Guiding Principle 27 adds:

“Administrative, legislative and other non-judicial mechanisms play an essential role in complementing and supplementing judicial mechanisms. Even where judicial systems are effective and well-resourced, they cannot carry the burden of addressing all alleged abuses; judicial remedy is not always required; nor is it always the favoured approach for all claimants.”

The CORE is a State-based non-judicial grievance mechanism.

The UN Guiding Principles do not specify exactly what kinds of State-based non-judicial grievance mechanisms States should provide in order to meet Guiding Principle 27 and the broader State Duty to Protect detailed in “Pillar 1”.  All that is specified in Guiding Principle 27 is that they should be “effective and appropriate”.  As explained further below (see section 2.4), the effectiveness of a non-judicial grievance mechanisms (for the purposes of assessing alignment with the UN Guiding Principles) is assessed according to the “effectiveness criteria” set out in UN Guiding Principle 31.  The additional criterion of “appropriateness” in Guiding Principle 27 refers to the need for State-based non-judicial grievance mechanisms to be designed and operated in such a way that is suitable for the contexts and places in which they will be expected to work, and responsive to local conditions and needs, as well as being aligned with international human rights standards.  However, there is an obvious overlap between “effectiveness” and “appropriateness” as inappropriate grievance mechanisms are unlikely to be effective ones.

The term “State-based non-judicial grievance mechanism” encompasses a wide array of State-based bodies relevant to business respect for human rights.  As OHCHR elaborates in a 2018 report to the UN Human Rights Council:

“State-based non-judicial mechanisms may take many different forms. In most jurisdictions, a range of mechanisms with a role to play in the handling of complaints and/or resolving disputes arising from business-related human rights abuses may be identified. Such mechanisms can be found at all levels of government: local, regional and national. While some have mandates relating to all human rights, many are specialized bodies that focus on specific human rights-related themes, such as labour rights, non- discrimination, consumer rights, the right to privacy, environmental rights, or the rights to water or to health. Common examples of relevant State-based non-judicial mechanisms include labour inspectorates; employment tribunals; consumer protection bodies (often tailored to different business sectors); environmental tribunals; privacy and data protection bodies; State ombudsman services; public health and safety bodies; professional standards bodies; and national human rights institutions.”^{Footnote 8}

This diversity complicates the analysis of State-based non-judicial mechanisms, and clearly flexibility is needed in the design of any assessment or benchmarking framework to take account of the fact that bodies that fall within this category can be very different in terms of institutional structures, mandates, geographic scope of activities, functions, powers and governance arrangements.  However useful guidance can be found in the reports published by OHCHR at the conclusion of each phase of the Accountability and Remedy Project, which includes a series of “policy objectives” for States and other actors, supported by a set of “elements” designed to highlight good practice for a wide range of different mechanisms.^{Footnote 9}

The CORE is described (and, notably, in its founding legal instrument)^{Footnote 10} as an “ombud” type body which, as mentioned above, is one of several different forms that State-based non-judicial grievance mechanisms (as described in the UN Guiding Principles) can take.  This official designation of the CORE as an ombud body raises its own set of issues, which are discussed in a separate and complementary piece of research.^{Footnote 11}  For this report, the UN Guiding Principles and supporting guidance provided by the OHCHR (particularly the 2018 reports to the Human Rights Council that relate specifically to State-based non-judicial mechanisms),^{Footnote 12} are key points of reference.  The UN Guiding Principles assume particular importance for the CORE for two main reasons:

• The instruction in the CORE’s founding legal instrument that “in discharging the mandate, the Ombudperson is to be guided by the UN Guiding Principles …”^{Footnote 13}; and
• The CORE’s explicit mandate to “promote the implementation of the UN Guiding Principles”.^{Footnote 14}

2.4 The concept of “effectiveness” of non-judicial grievance mechanisms under the Guiding Principles

The UN Guiding Principles set out a series of criteria by which the effectiveness of all non-judicial grievance mechanisms relevant to business respect for human rights can be assessed (see Guiding Principle 31).  These criteria are often referred to (and are referred to in this report) as the “UNGP 31 effectiveness criteria”.  Given that these criteria apply to a very wide range of non-judicial mechanisms, both State-based and non-State-based, they are deliberately flexible.  High-level explanation of what these different criteria mean in practice is provided in the Commentary to the UN Guiding Principles. Further guidance about how best to implement the UNGP 31 effectiveness criteria in different contexts, and with respect to a wide range of grievance mechanisms (including “ombud” bodies), was provided by OHCHR through reports to the Human Rights Council at the conclusion of the second and third phases of the OHCHR Accountability and Remedy Project.^{Footnote 15}

2.5 How is the independence of State-based non-judicial grievance mechanisms relevant to their “effectiveness” under Guiding Principle 31?

Independence is not treated in Guiding Principle 31 as a criterion of a mechanism’s effectiveness in its own right.  It is best understood as means to an end – a means through which the various UNGP 31 effectiveness criteria can be met – rather than an as an end in itself.  Thus, it is not possible to say in the abstract precisely what level of independence is required to achieve “effectiveness” as this concept is defined in the UNGPs, or the precise means by which that level of independence should be attained.  Rather, the question of whether a mechanism is sufficiently independent is assessed by reference to that mechanism’s outcomes; in the words of OHCHR:

“Whether their degree of independence, mandates, functions and powers are appropriate and sufficient, when analysed together with relevant laws and policies, to provide a legal and regulatory environment conducive to business respect for human rights.”^{Footnote 16}

Independence is relevant to several of the UNGP 31 “effectiveness criteria”.  For instance, it is considered a particularly important aspect of a grievance mechanism’s legitimacy in the eyes of people who may wish to use the mechanism (see UNGP 31(a)).  The Commentary to the UN Guiding Principles notes, in its discussion of the concept of “legitimacy”, that:

“Accountability for ensuring that the parties to a grievance process cannot interfere with its fair conduct is typically one important factor in building stakeholder trust.”

Independence can also be a factor in the ability of a mechanism to act objectively, impartially, and free from bias and, hence, equitably (see UNGP 31(d)).  A grievance mechanism’s independence can also be a factor in whether it is able to act predictably, which is a further criterion of effectiveness under the UN Guiding Principles (see UNGP 31(c)).^{Footnote 17}

The transparency of a grievance mechanism (see Guiding Principle 31(e)) and its independence are also closely connected.  Observing transparency makes a mechanism less vulnerable to interference by vested interests, and hence more likely to act in a predictable manner (see Guiding Principle 31(c)).

As can be seen, the UNGP 31 effectiveness criteria are linked in multiple ways, with successes and failings in relation to one criterion often closely related to performance in others.

The range of non-judicial mechanisms addressed by Guiding Principle 31 makes it impossible to prescribe, in the abstract, the precise point at which a standard of “effectiveness” is met.  For the same reasons, there is no tool or guidance presently available that would allow definitive judgments to be made about the precise level of independence required for a grievance mechanism to be definitively regarded as effective under the UN Guiding Principles.  Rather, the “effectiveness” of grievance mechanisms is a matter of degree, as well as being context-dependent, and the process of achieving alignment with the UN Guiding Principles is a constant, iterative one, based on experiences, lessons learned, guidance from credible international institutions working in the field of business and human rights, such as OHCHR, the UN Working Group on Business and Human Rights, OECD, national human rights institutions, as well as the important contributions made by interested civil society organisations, trade unions and other stakeholders.

Establishing and maintaining the right degree of independence from government can be particularly challenging for State-based grievance mechanisms. As OHCHR observes in its explanatory addendum to its 2018 report to the Human Rights Council:

35. “… a defining feature of a State-based non-judicial mechanism (as opposed to a judicial mechanism) is its relationship with the executive (rather than judicial) branch of government. This raises questions as to the appropriate level of independence of operation, in light of its particular mandate, functions and powers, to ensure that the mechanism has legitimacy and trust in the eyes of stakeholders …

  … [and] …

38. The extent to which a mechanism should be able to act independently and proactively, and the steps needed to achieve this, will vary depending on the nature of the mechanism and its mandate. Independent appointment panels for board members, or stakeholder representation on governing bodies, or the use of independent monitoring or advisory bodies, might work well in some settings, but will not necessarily be appropriate in others.”^{Footnote 18}

To assist States in this complex analysis, OHCHR, in its main 2018 report on State-based non-judicial grievance mechanisms, has laid out a series of “elements” that will be relevant to judgements about a mechanism’s “legitimacy” (and hence overall “effectiveness” as defined in the UN Guiding Principles).  Two of these “elements” are directly related to the issue of independence, namely

“6.1 The State has made the structural, institutional, administrative and resourcing arrangements needed to (a) provide each State-based mechanism with a degree of operational autonomy from government functions that is appropriate in the light of its specific mandate and functions; (b) minimize the risk of conflicts of interest for the State-based mechanism (or any of its personnel) with respect to the discharge of its powers and/or functions; and (c) minimize the risk of any undue influence of any one actor or group of actors.

  … [and] …

6.6 State-based non-judicial mechanisms have adopted and implemented appropriate policies and procedures to detect, avoid and respond appropriately to conflicts of interest (both actual and potential), including those that may arise where the relevant mechanism has had conferred upon it a range of functions, such as education and awareness-raising, in addition to addressing complaints and resolving disputes.”^{Footnote 19}

2.6 How is the independence of State-based non-judicial grievance mechanisms relevant to access to effective remedies for business-related human rights harms?

People affected by business-related human rights harms tend not to make use of grievance mechanisms they do not trust.  They, and the people and organisations who represent them, are generally and understandably reluctant to spend precious time, money and other resources on mechanisms or processes where there is little chance of a positive outcome.

Perceptions of lack of independence, whether from government or vested interests, raise legitimate questions among stakeholders as to whether the grievance will be taken seriously and dealt with fairly and impartially, with obvious implications for calculations of risk versus reward.

Concerns about lack of independence will be even more acute in cases and contexts where there is a risk of retaliation against people raising grievances. Questions surrounding a mechanism’s independence may raise doubts, for instance, as to whether confidentiality undertakings or guarantees of anonymity can really be relied upon. The consequence may be that, although there may be a mechanism available to respond to a grievance in theory, there is no safe or realistic route to remedy in fact.

A lack of independence may also act as a constraint on the types of substantive remedial outcomes a mechanism can deliver.  For instance, it may discourage parties to a grievance from engaging seriously and proactively in processes aimed at identifying a suitable remedy and a workable plan for implementing it (a particular problem for grievance mechanisms that rely on goodwill and dialogue rather than binding investigative, enforcement and monitoring powers).  It may lead mechanisms to favour caution in the way they deal with certain stakeholders (and particularly the companies that are the subject of grievances), making them ineffective as a source of challenge, and less likely to engage in debates that could spur new thinking.  It may undermine the credibility of any recommendations made (for instance on the basis of perceptions that an outcome had been shaped by political considerations) and hence the likelihood they will be taken seriously and implemented diligently.  Stakeholder concerns about lack of independence may also limit the ability of a mechanism to fully explore the implications of different remediation options with different stakeholder groups, for instance to ensure that outcomes are properly aligned with international human rights standards (see “rights-compatibility” in the UNGP 31 effectiveness criteria, Box 2 above) and that remediation outcomes do not yield adverse unintended consequences.

2.7 How do State-based non-judicial grievance mechanisms establish and maintain their independence?

The answer to this question depends on the type of independence; specifically, “independence from whom?”  As will be discussed in more detail in Part 3, the independence of State-based non-judicial grievance mechanisms has several dimensions, i.e.:

• independence from government;
• independence from business; and
• independence from other stakeholders (including users and potential users of grievance mechanisms and processes).

Issues and factors that will be relevant to establishing and maintaining independence from each of these different stakeholder groups and interests are set out in the table below.

Table 1: Factors relevant to independence

The next section (Part 3) discusses the above factors specifically as they relate to the CORE (based on the information made available for the purposes of the desk-based review), and the implications of these for the CORE’s effectiveness (as defined in the UN Guiding Principles) and the CORE’s contribution towards access to remedy more broadly.

Part 3. Discussion

3.1 CORE’s independence from the Canadian Government

3.1.1 Foundational issues

The office of the CORE was established by Order in Council 2019-1323.  The CORE is appointed by the Governor in Council under paragraph 127.1(1)(c) of the Public Service Employment Act as a special advisor to the Minister for International Trade.  Under its founding legal instrument the CORE is given a mandate that spans promoting responsible business standards, advising Canadian companies, advising the Government and “reviewing” allegations of human rights abuses arising from the operations of Canadian companies, in specific sectors, outside Canada.^{Footnote 20} The CORE’s mandate also includes making recommendations to Government about certain matters including (a) access to trade services and support for companies deemed not to have acted in good faith in the course of a review process, and (b) in relation to the review of “funding and services provided to Canadian companies by the Government of Canada” at the conclusion of a review process.^{Footnote 21}  However, the CORE expressly does not have the power “to create new standards concerning responsible business conduct.”^{Footnote 22} The CORE has no binding powers to compel the production of evidence or testimony.

3.1.2 Governance and scrutiny issues

The CORE is described as reporting to the Minister for International Trade, but the office is said to operate at “arm’s-length” from the government (the relevant executive body being Global Affairs Canada).^{Footnote 23}  Under the CORE’s founding legislation, the CORE must submit an annual report to the Minister on the CORE’s activities, which is tabled before Parliament and made publicly available  via the CORE’s web-site).^{Footnote 24} 

The CORE’s founding legal instrument requires, in addition to the annual reports mentioned above, the submission to the Minister of “initial assessments”, “interim reports”, and “final reports” relating to a review, and reports of follow up activities, which are also required to be made publicly available after submission to the Minister.^{Footnote 25}  Under the CORE’s own operating procedures,^{Footnote 26} the Minister is to receive reports 30 days before they are published on the CORE web-site.^{Footnote 27}  Reports concerning companies operating in the extractive sector are transmitted to the Minister of Natural Resources at the same time that they are transmitted to the Minister for International Trade.^{Footnote 28}

Under supplementary arrangements laid out in a letter from the Minister to the CORE dated 4 October 2022,^{Footnote 29} the CORE is expected to submit to the Minister an annual report of achievements no later than 1 November each year including “qualitative and quantitative measurements of how the CORE has delivered on each aspect of its mandate, with reference to objectives and performance indicators set out in the work plan” (on the annual work plan, see section 3.1.3 below). This report is then tabled in Parliament pursuant to section 13 of Order in Council 2019-1323.

This same letter signals the Minister’s expectation that there will also be:

• bi-monthly meetings between the Ministers office and the office of the CORE;
• monthly meetings with Canada’s Chief Trade Commissioner;
• “regular” meetings with the Deputy Minister of International Trade.

In addition, a draft Cooperation Framework between Global Affairs Canada and the Canadian Ombudperson for Responsible Enterprise’ (the ‘draft Cooperation Framework’) ^{Footnote 30} commits Global Affairs Canada to “provide regular feedback on [CORE’s] objectives and performance”.  That same draft agreement also commits the CORE to “share relevant unclassified, non-commercially sensitive information with the Department” to “inform [Global Affairs Canada] of any reports or advice produced by the CORE before making them public” and to “consult with the Department [and/or Other Government Departments, as appropriate, when engaging on issues that fall under their respective mandates or which touch upon broader Government of Canada priorities.”

3.1.3 Operational issues: general and strategic

Under its founding legal instrument, the CORE has the discretion to determine how reviews are to be conducted, and the “sole discretion” to refuse to review a complaint.^{Footnote 31} Procedures for a “fair and transparent review process” are to be developed by the CORE, who has the discretion (but not the obligation) to take account of the recommendations of the “Advisory Body on Responsible Business Conduct”^{Footnote 32} (see further discussion at 3.2.1 and 3.3.1 below).  The CORE’s approach to the conduct of reviews is set out in a special set of “operating procedures” developed and published by the CORE.^{Footnote 33}

Under supplementary arrangements laid out in a letter from the October 2022 SPA Letter,^{Footnote 34} the CORE is expected to submit to the Minister an annual work plan by June 30 of each year “outlining proposed areas of focus and activities of [the CORE’s] office” and including “performance indicators for each area of [the CORE’s] mandate.

The most recent iteration of the Canadian government’s Responsible Business Strategy,^{Footnote 35} includes an action to establish a “multi-stakeholder advisory body to provide RBC-related advice to Global Affairs Canada ensuring that such a body includes under-represented persons, including those from marginalized or vulnerable communities.”^{Footnote 36}  However, the official status of this body (assumed to be the same body as that referred to in section 9 of Order in Council 2019-1323) is as an advisor to the Minister, not the CORE.  While it not would seem to be consistent with the “arm’s length” status of the CORE for the CORE to seek to engage with this particular advisory body, this would not of itself preclude the CORE from seeking to establish a dedicated advisory body for itself to act as a sounding board and source of advice for the CORE for a wide range of operational matters, in a similar way to that envisaged for the GAC multi-stakeholder advisory board.

Further operational issues connected with staffing, resources and budget are discussed in sections 3.1.4 to 3.1.6 below.

3.1.4 Operational issues: staffing and recruitment

Selection and appointment of Ombud

As noted above, the CORE is a public servant employed by the Department of Foreign Affairs, Trade and Development with an employment designation of Special Advisor to the Minister for International Trade.  This role is Grade GCQ-6, a senior appointment within the Canadian public service, equivalent in seniority to that of Assistant Deputy Minister.  The appointment process for the CORE is the same as for all “Governor In Council” appointments, and based on principles of openness, transparency and appointment on the basis of merit.^{Footnote 37}  Under this process, a selection committee is convened to recommend candidates for appointment, based on eligibility criteria set by the selection committee.  The position is advertised publicly through a “Notice of Opportunity” posted on web-sites of relevant government departments and also in the Canada Gazette.  Applicants entered on a short list of qualified candidates are interviewed by the selection committee. The CORE is appointed for a period of up to five years (on a full-time basis), which may then be “renewed” for a further period at the discretion of the appointing body.^{Footnote 38}  Under Order in Council 2019-1323, the CORE holds office “during good behaviour” which means, according to the government’s ‘terms and conditions applying to Governor in Council appointees,’ that they could only be removed “for cause.”^{Footnote 39}

The CORE is subject to the Guidelines for the Political Activities of Public Office Holders which form part of the Canadian Open and Accountable Government Policy (2015).^{Footnote 40}  These Guidelines are based on a general principle that:

“A public office holder should not participate in a political activity that is, or that may reasonably be seen, to be incompatible with the public office holder’s duties, or reasonably seen to impair his or her ability to discharge his or her public duties in a politically impartial fashion, or would cast doubt on the integrity or impartiality of the office.”^{Footnote 41}

Recruitment of staff

The CORE is responsible for the recruitment of their own staff, which, upon appointment, become employees of the Department of Foreign Affairs, Trade and Development under the Public Service Employment Act.  Recruitment is carried out by the CORE pursuant to a formal document from Global Affairs Canada conferring subdelegated decision-making and approval authority with respect to recruitment and hiring decisions.^{Footnote 42} Under this arrangement the CORE, in its exercise of sub-delegated authority, is bound to:

“respect the staffing values set out in the [Public Service Employment Act] (merit, non‑partisanship, fairness, access, transparency and representativeness) and meet the requirements of the [Act], the Public Service Employment Regulations, the PSC appointment policy, organizational policies and any other applicable statutory instrument relating to the integrity of appointments.” ^{Footnote 43}

In addition, as noted below, the CORE is reliant on Global Affairs Canada for a range of internal support services, including human resources, financial management, legal services and IT support.  The office of the CORE presently has approved ongoing salary funding for 14 positions (FTE), including the Ombud herself. In addition, the CORE hires, from time to time, short-term staff (“casual staff”) for 90 days per year, students, part time employees and “term” employees with a duration not exceeding 3 years. The costs of these shorter-term and casual staff are covered by the CORE’s operating budget. The number of individuals presently working at the CORE (comprising a mix of people on indeterminate terms and people on shorter terms, including casual staff) is 26.  All staff (FTEs and non-indeterminate) are subject to:

• the GAC Values and Ethics Code, and
• the GOC Directive on Conflict of Interest.

The relevance of these for the CORE’s independence from other stakeholders (and especially businesses) is discussed further below (see sections 3.2.2 to 3.2.4 below).

Responsibility for ensuring proper conduct of any relevant disciplinary procedures, in the event of a breach of any of these standards, is with the GAC labour representative assigned to the CORE by the human resources department of Global Affairs Canada.  

3.1.5 Operational issues: funding allocations and budget

Like any governmental entity, the CORE is subject to regular financial audit; however, it is unclear when or how often such an audit would take place, and none has occurred as yet.

The October 2022 SPA Letter confirms a current operating budget for the CORE’s office of $4.3 million per annum (comprising an operating budget of $3.7 million and the remainder as non-discretionary funds). The CORE’s funding derives from three separate funding sources.  After deduction of non-discretionary amounts (i.e. operating costs and employee benefits), this leaves the office of the CORE with control (i.e. discretion over spending) of $3,439,248 for the financial year 2021-2022; and $3,731,263 for the financial year 2022-2023 and ongoing. The draft Cooperation Framework Agreement between the CORE and Global Affairs Canada contains little information as to how funding will be allocated in the future, merely that any future reduction to the budget “will have regard to the CORE’s arms-length status.”^{Footnote 45}  However, the 2021 Federal Budget states that funding will be “ongoing”. Giving evidence to a Parliamentary Subcommittee on 23 February 2021, the current Ombud, Ms Sheri Meyerhoffer, expressed the view that the budget allocation to CORE was sufficient to meet its needs at that time.^{Footnote 46}

3.1.6 Operational issues: other resources

The terms of the draft Cooperation Framework Agreement^{Footnote 47} suggests that CORE is reliant on Global Affairs Canada for “internal services and support, such as for human resources; financial management; compensation; accommodation management; materiel management; information technology; corporate services; legal services, corporate planning and reporting, Access to Information and Privacy (ATIP), security and emergency planning and communication services.” ^{Footnote 48}

3.1.7 Legal issues: privacy and public access to information held by public authorities/legal immunities

As presently constituted, the CORE is subject to the Privacy Act and the Access to Information Act. The Privacy Act protects personal information about individuals from being used for purposes other than that for which it was collected, but, according to a 2019 legal opinion provided by Ms Barbara McIsaac Q.C. (the McIsaac Opinion), the CORE would nevertheless also be obliged to disclose personal information in certain circumstances, in accordance with that legislation. In its Operating Procedures for the Human Rights Responsibility Mechanism,^{Footnote 49} the CORE confirms that it will not use or disclose personal information without the consent of the individual to whom the information belongs unless a court orders the CORE to do so. However, according to the McIsaac Opinion, information held by the CORE provided by third parties, including confidential information provided by Canadian companies, may be subject to a request for disclosure under the Access to Information Act. The McIsaac legal opinion notes further that the CORE does not have the benefit of explicit statutory protections from civil liability or criminal liability in the carrying out of its functions, including protections from actions based on the law of libel or slander.^{Footnote 50}

3.2 CORE’s independence from business

3.2.1 Foundational issues

See the summary at 3.1.1 above.  For the purposes of this discussion is it relevant to recall in particular:

• the absence of legally binding powers of investigation in the legal instrument establishing the CORE’s role and mandate, and also
• the various matters on which the CORE is empowered to make recommendations to the Minister under its founding Order in Council, including in a situation where the Ombudsperson considered that the company concerned has not been acting in good faith “during the course of or follow-up to the review process.”^{Footnote 51}

It is also relevant to recall that under the Order in Council, the scope of the CORE’s activities is limited to Canadian companies “[operating] abroad in the garment, mining, or oil and gas sectors” (and subsidiaries of those companies operating in the same sectors).^{Footnote 52}

3.2.2 Operational issues: staffing and recruitment

See the summary at 3.1.4 above.  For the purposes of this discussion it is relevant to recall in particular the procedures for the appointment of the CORE as a “Governor in Council” appointment. 

The position with respect to staff below the level of the CORE is discussed at 3.2.3 and 3.2.4 below.

3.2.3 Conflicts of interest

As a public office holder, the CORE is subject to the Canadian Conflicts of Interest Act 2006 which obliges the CORE to

• “arrange his or her private affairs in a manner that will prevent … [him or her] … from being in a conflict of interest” and
• refrain from making “a decision … related to the exercise of an official power, duty or function if [he or she] knows or reasonably should know that, in the making is the decision, he or she would be in a conflict of interest.^{Footnote 53}

This Act also obliges public office holders to make a confidential report to the Conflict of Interest and Ethics Commissioner within 60 days of an appointment setting out information including details of employment, consulting work or duties “managing or operating a business or commercial activity” in which the public office holder was engaged in the two previous years.^{Footnote 54}  The Commissioner reviews the contents of the confidential report with the relevant public office-holder (on an annual basis) to ensure that the Act is being complied with.

As noted above (see section 3.1.4), other CORE staff (FTEs and non-indeterminate) are subject to

• the GAC Values and Ethics Code, and
• the GOC Directive on Conflict of Interest.

The GAC Values and Ethics Code contains detailed guidance for public servants on ethical matters, including recognising and avoiding conflicts of interest.  Guidance is provided on gifts and hospitality, for instance, as well as outside activities. 

3.2.4 “Regulatory capture”

Regulatory capture (also called “corporate capture”) refers to the possibility that regulatory agencies can come to be dominated or unduly influenced by the companies they have responsibility for regulating. For purposes of assessing the extent to which the CORE may be prone to “regulatory capture” it is relevant to recall that, under its founding legal instrument, the CORE is given a mandate that spans promoting responsible business standards, advising Canadian companies, advising the Government, and “reviewing” allegations of human rights abuses arising from the operations of Canadian companies in specific sectors outside Canada.^{Footnote 56}

“Regulatory capture” can also come about when there are insufficient safeguards against staff accepting offers of employment with companies they come into contact with through their work.  Here, it is relevant to note the rules laid down in the Conflict of Interest Act, to which the CORE is subject as a public office holder, which prohibits public office holders from:

“[entering] into a contract of service with, accept an appointment to a board of directors of, or [accepting] an offer of employment with, an entity with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office.”^{Footnote 57}

For staff below the level of the CORE, the GAC Values and Ethics Code (mentioned above) provides that:

“Before leaving their employment with the Public Service, all public servants are to disclose their intentions about any future outside employment or activities that may pose a risk of real, apparent, or potential conflict of interest with their current responsibilities, and discuss potential conflicts with their managers or the Values and Ethics Division, who will engage the Deputy Minister of Foreign Affairs as appropriate."^{Footnote 58}

Further guidance on management of situations that could give rise to a situation of “regulatory capture” are set out in the Government of Canada Directive on Conflict of Interest. The provisions on ‘procedures for preventing and dealing with post‑employment conflict of interest situations’ indicate a one‑year post‑employment limitation period (See A.2.2.4.3), which can be reduced on application.

3.2.5 Legal issues

See the summary at section 3.1.6 above.  For the purposes of this discussion is it particularly relevant to recall the comments in the McIsaac Opinion about possible gaps and deficiencies in legal protections from civil liability provided to the CORE with respect to the performance of CORE’s mandate and functions under the Order in Council,^{Footnote 59} and the appropriateness of the current state of affairs in light of the CORE’s specific mandate and functions.

3.3 CORE’s independence from other stakeholders

Many of the features of CORE’s current legal, institutional, governance and operational arrangements, discussed above, are also relevant to CORE’s independence from other stakeholders. These include

• The requirement in the Order in Council for the Ombudsperson to establish and operate a fair and transparent review process (see section 9);
• Further provisions in the Order in Council empowering the CORE to undertake reviews on its own initiative (section 4(d)) and making it clear that decisions to accept complaints, refer them onwards, or terminate review processes are at the CORE’s own discretion (sections 7 and 8);
• The commitment in CORE’s operating procedures to “implement the HRRM in a predictable, flexible, fair and transparent manner having regard to the circumstances of the parties, the nature of the matter, the positions of the parties” (at paragraph 3.5);
• Transparent appointment processes for the CORE, using a specially convened selection committee and a due diligence process designed to identify any potential conflicts of interest;
• Rules prohibiting the CORE (as a public office holder) from engaging in political or lobbying activities;^{Footnote 60}
• Legislation on conflicts of interest;^{Footnote 61} and
• Provisions on probity, impartiality and high ethical standards as part of employment terms.^{Footnote 62}

These ideas of fairness, transparency, impartiality, and integrity find expression in many (if not all) of the UNGP 31 effectiveness criteria, most obviously the criteria of legitimacy, (Guiding Principle 31(a)), predictability (Guiding Principles 31(c)), (equitability (Guiding Principle 31(d)), transparency (Guiding Principle 31(e) and “rights-compatibility” (Guiding Principle 31(f)).

However, for State-based non-judicial grievance mechanisms, fairness and impartiality does not imply that parties to a grievance must engage with a grievance mechanism on exactly the same terms.  On the contrary, as explained in the Commentary to the UN Guiding Principles:

“In grievances or disputes between business enterprises and affected stakeholders, the latter frequently have much less access to information and expert resources, and often lack the financial resources to pay for them. Where this imbalance is not redressed, it can reduce both the achievement and perception of a fair process and make it harder to arrive at durable solutions.”^{Footnote 63}

These concerns are recognised in the CORE’s own Operating Procedures for the Human Rights Responsibility Mechanism in the following terms:

“The CORE is committed to dispute resolution processes that address power imbalances and are inclusive having regard to characteristics such as race, gender, ethnicity and age, and the intersection of those characteristics. The CORE will consider ways to address additional barriers to access faced by individuals and communities at heightened risk of violence, vulnerability or marginalization, in particular, Black and Indigenous individuals and communities.”^{Footnote 64}

In other words, while observing standards of fairness and transparency, State-based non-judicial grievance mechanisms are expected to give particular attention to the needs of people and communities that may be affected by business-related human rights harms and for whose use the mechanism has been developed. This demands close consultation with affected people and their representatives on the design and operation of the mechanism, and on its performance in practice.  As the OHCHR has put it:

“Developers and operators of grievance mechanisms must be prepared to meaningfully consult (potentially) affected stakeholders at various stages. Such engagement should allow those concerned with developing and operating the mechanism to hear, understand, and respond to stakeholders’ interests and concerns.”^{Footnote 65}

In practice, therefore, these twin imperatives – of (a) ensuring that the mechanism is properly responsive to the needs of affected stakeholders and communities and (b) responding to problems arising from imbalances of power and resources between affected people and communities and the relevant companies – means that State-based grievance mechanisms are likely to (and indeed are expected to) interact very differently with different kinds of stakeholders, arriving at a careful balance between the need to act fairly towards all parties to a grievance (including companies, of course), and the need to ensure that affected people can engage confidently and proactively with all the relevant processes.

This does not denote bias or a lack of independence on the part of the mechanism.  On the contrary, it serves as at least a partial antidote to the various possible sources of “regulatory capture” discussed in section 3.2.4 above and is regarded as fundamental to securing good human rights outcomes for affected people.

Meaningful stakeholder consultation can be difficult to achieve in practice, and can be very demanding in terms of time and resources to do properly.  This is particularly the case where affected people and communities are difficult to identify in advance, or may live in remote or geographically far-flung places.  OHCHR guidance, referred to above, draws attention to the important point (and one which is often overlooked), that “communities are rarely homogenous in terms of people’s interests” adding that “strenuous efforts and creative approaches are often needed in order to engage properly with harder to reach groups and gain a full picture of stakeholder needs and preferences.”^{Footnote 66}

This offers a reminder of the importance of ensuring that designers and operators of grievance mechanisms do not inadvertently prioritise the needs and preferences of some affected stakeholders over others (e.g. through “capture” by certain interest groups, or by neglecting to consult sufficiently widely or thoroughly).

For the development of the first iteration of its Operating Procedures for the conduct of grievance process and reviews, the CORE made its own arrangements for stakeholder engagement, facilitating three rounds of consultation in total and encompassing representatives of business groups, civil society organisations and trade unions, some of which had previously participated in the Advisory Body.  The process for the next upgrade of these procedures (scheduled for 2024) is likely to involve at least one round of further consultations.

Part 4. Options for enhancing the independence of the CORE

As noted at the outset (see section 1.3, Methodology and scope) advice on optimal structural, institutional or governance arrangements for the purpose of enhancing CORE’s independence is beyond the scope of this report, these being matters of policy for the Canadian Government.

Instead, research findings and recommendations are arranged below according to two “scenarios;” one that depends upon the grant of a new mandate for the CORE, founded on new primary legislation (section 4.1), and another that assumes the continuance of the status quo (i.e. in terms of the nature of CORE’s foundational arrangements, see section 4.2).

The tabular format in the sections below is used for ease of reference; for highlighting the particular contribution to “independence” that each option could potentially make, some special considerations that may need to be taken into account, the linkages that may exist between different options, and relevant OHCHR guidance.  However, the options set out in the Tables below are only offered “in principle.”  No views are expressed on the legal or operational feasibility of these, and separate legal advice would likely be needed on their implementation in any case.

It should not be assumed that all of the elements listed under each “scenario” apply only in relation to that scenario.  For instance, there may be some options set out in section 4.2 (the “continuance of the status quo” scenario) that could also be relevant to section 4.1 (the “new mandate” scenario).  However, given that many (if not all) the options set out in section 4.1 would need primary legislation to be implemented effectively, it is difficult to see how these could be reflected (even in a more limited form) within a “continuance of the status quo” scenario.

4.1 A new mandate

Table 2: Options for enhancing CORE’s independence in “new mandate” scenario

4.2 The status quo

Table 3: Options for enhancing CORE’s independence in “continuance of status quo” scenario

Part 5. Conclusion

This study has identified a number of factors that are potentially undermining of the CORE’s independence, and hence its ability to meet the “effectiveness criteria” laid down in the UN Guiding Principles on Business and Human Rights. These include:

• Constituting the CORE through an Order in Council, a constitutionally precarious legal mandate compared to primary legislation (which would require further parliamentary scrutiny to repeal or change).
• The CORE’s status as a Special Advisor to the Minister, and the lack of separate corporate personality of the CORE’s office and operations.
• Lack of a clear and shared understanding between CORE, the Minister and the Department about appropriate “terms of engagement” with respect to the work of the CORE, arguably illustrated by attempts to impose a set of terms unilaterally through the issue of the October 2022 SPA letter, and by requirements, in the draft Cooperation Framework Agreement and elsewhere, that Ministers and departments receive advance sight of key documents and reports.
• Lack of clarity about the basis on which future funding allocations may be increased or decreased, notwithstanding the stability provided for the present time by “ongoing” funding commitments under the current Federal Budget.
• The CORE’s reliance on Global Affairs Canada for IT, communications, certain administrative support, and other office services.
• The CORE’s lack of access to independent legal counsel, and, related to this, the lack of clarity concerning the extent to which and the circumstances in which the CORE may be vulnerable to legal action arising from the discharge of the CORE’s legal mandate (e.g. on the basis of judicial review, or libel, or on some other basis).
• The CORE’s lack of binding powers of investigation (e.g. to compel production of evidence and testimony).
• The CORE’s ability to only offer “non-binding recommendations” at the conclusion of a review, making implementation of trade-related recommendations a matter for Ministerial discretion.
• Lack of clarity on the criteria that will be taken into account in deciding whether to renew the CORE’s term, and even the length of that “renewal” term.
• CORE’s present lack of autonomy with respect to its own web-site (with potential repercussions for reporting and engagement with stakeholders and the public through this means).

Of these problems, the lack of binding powers of investigation seems currently to be receiving the most attention in political debates about the role and performance of the CORE, especially in commentaries and critiques by external commentators and stakeholders.  However, as can be seen, this issue, while important, is only one aspect of a much more varied and complicated picture.

In the absence of clear “terms of engagement” between the actors involved, there is a risk that the independence of the CORE in fact ends up being dependent, not upon solid structures and principles, but on more transient factors such as the personalities of the actors involved (e.g. the “feistiness” of the CORE and the “supportiveness” of the Minister and departmental colleagues).  However, there is scope for improving the clarity and stability of arrangements, even in the “status quo” scenario, and Part 4 above sets out a series of options to explore.

In developing options to strengthen the independence of the CORE, it will be important to take account of some broader legislative trends in the field of business and human rights.  Key among these are moves to introduce more binding transparency standards for companies with respect to their performance vis-à-vis human rights and environmental standards.  Commentators are increasingly talking up the prospects of new binding transparency standards for Canadian companies in the not- too-distant future.  Also under discussion, though probably somewhat further off, are laws on mandatory human rights due diligence.  Laws of this types are under active discussion in a number of European jurisdictions, and a proposal for a new directive on “sustainability” due diligence was adopted by the European Commission in February 2022. At some point, Canada may follow suit.  Should detailed Canadian legislative proposals emerge on either topic, it is to be anticipated that the CORE will have an important role the play.  In any event, and regardless of any specific regulatory role CORE may play in the future, the introduction of new transparency and due diligence laws may present the CORE with new opportunities with respect to the way it discharges various aspects of its present mandate (e.g. by virtue of having greater access to more detailed and comprehensive corporate information on human rights risk management and mitigation).

The CORE is an important innovation in the field of business and human rights. However, its status as a “world first” does not mean it cannot (or should not) be significantly improved.  As this study has shown, ensuring that a grievance mechanism has the right level of independence can potentially yield multiple and significant dividends in terms of overall effectiveness.  It is not possible to point to the exact point at which a mechanism achieves the “correct” or a “sufficient level of independence.” OHCHR guidance suggests that the best measure is ultimately whether the mechanism is able to “provide a legal and regulatory environment conducive to business respect for human rights” and “meet the needs and sufficiently safeguard the rights of the individuals and/or communities for whom those mechanisms are intended.”^{Footnote 67}  In relation to the CORE, stakeholder critiques suggest that these goals are not yet being met.  However, this study has identified a number of possible options for progressive, if not immediate, improvement.

About the author

Dr Jennifer Zerk is a freelance writer, researcher and analyst specialising in law and corporate social responsibility.  She holds a LLM in international economic law from the University of London and a PhD in international law from the University of Cambridge.  She is a regular contributor and adviser in relation to UK and EU policy initiatives and consultations.  Internationally, she is a respected and sought-after consultant, commentator and speaker.  She has advised on a number of significant law reform and policy initiatives in the business and human rights field including, most recently, as lead legal consultant on the Accountability and Remedy Project of the Office of the UN High Commissioner for Human Rights.  She is an associate fellow in the International Law Programme at the Royal Institute of International Affairs (Chatham House).