Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1949)

A Government representative started with the overview of the background of the case and pointed out that the Government Communications Headquarters (GCHQ) collected and monitored information for intelligence purposes and formed an integral part of the United Kingdom intelligence system. He emphasized the change in the legal status of the GCHQ under the Intelligence Services Act of 1994 and the fact that GCHQ provided government departments and military command with vital signal intelligence, and had close and vital links with the intelligence services in many other countries. The Act made it clear that GCHQ's intelligence production functions were exercisable "in the interests of national security with particular reference to the defence and foreign policies" of the Government. In the Act, the expression GCHQ referred to the Government Communication Headquarters and to any unit or part of a unit of the armed forces which was for the time being required by the Secretary of State to assist the Government Communication Headquarters in carrying out its functions. The speaker repeated that these were functions carried out directly or indirectly by the military in many countries. He explained, referring to the requirement that GCHQ's work maintain continuity of operations, that the action which the Government took to restrict staff representation at GCHQ was in response to the disruption caused between 1979 and 1981 when 10,000 staff days were lost through industrial action. The Government believed that it had an overriding responsibility to safeguard national security and therefore could not allow the continuity of GCHQ's operations to be threatened by industrial action.

As the first main problem of the case, the representative of the Government indicated that, in Britain, agreements reached between trade unions and employers were not legally enforceable and that, therefore, any offer of a no-strike deal from trade unions could never guarantee that future disruption would be avoided. In fact, a draft no-disruption agreement proposed by the Council of Civil Service Unions (CCSU) in 1984 was subsequently repudiated by two of the main unions. This risk of disruption would be inherent in any proposal to allow GCHQ staff to rejoin national unions.

The speaker thought that the second main problem was the difference of view between the United Kingdom Government and the Committee of Experts about the exemption of GCHQ staff from Convention No. 87 under Article 9. He emphasized that GCHQ staff included civil servants who come under the authority of the Foreign Secretary, as well as military personnel who come under the authority of the Secretary of State for Defence. If Britain suddenly imposed full military status upon these who had always enjoyed civilian status, it would be an arbitrary and unacceptable change for the individuals concerned, who regarded themselves as civilians and not as military personnel. He nevertheless considered that this was a difference of definition and not a real difference of function. He referred to the case of the European Court of Human Rights, which found in 1985 that the Government's action over GCHQ was not in breach of article 11 of the European Convention on Human Rights regarding freedom of association, since GCHQ was "a special institution whose purpose resembles to a large extent that of the armed forces and the police in so far as GCHQ staff directly or indirectly, by ensuring the security of the respondent Government's military and official communications, fulfil vital functions in protecting national security". He thought that the Committee of Experts had endorsed this view in practice in the 1994 General Survey on Freedom of Association and Collective Bargaining by noting that the exceptions authorized by Convention No. 87 were "justified on the basis of responsibility for the external and internal security of the State" (paragraph 55).

The Government believed that GCHQ was covered by the provisions of Convention No. 151, which allowed governments to decide on the extent of rights to trade union membership for public servants whose duties were of a highly confidential nature. It was therefore disappointing that the Committee of Experts dismissed this argument without specific grounds.

For the above reasons the Government representative considered that the position of staff at GCHQ needed to be regarded as an unusual and special case that fell outside the normal scope of freedom of association.

The Government representative further indicated the developments since the discussion of this case at this Committee in 1992, following the Government's assurance to continue the dialogue with the trade unions seeking an acceptable solution: there was a series of detailed and constructive discussions between the Secretary of the Cabinet and the head of the whole civil service, and the general secretaries of the national civil service unions; the Government Communications Staff Federation (GCSF) was formed and recognized by GCHQ management for all negotiating purposes, and now had membership of over 50 per cent of GCHQ staff; GCSF has been listed by the United Kingdom Certification Officer for Trade Unions and Employer Associations since 1985 and is recognized by the Certification Officer as operating largely in the same way as many other small trade unions in representing its members' interests. As regards the affiliation of GCSF to the CCSU, the speaker emphasized that the Government was prepared to make such affiliation possible but that the civil service unions were not prepared to accept it. Since the meeting between the Prime Minister and the unions in December 1993, there had been no formal proposals submitted by the trade unions but informal contacts had been continuing on this issue.

The speaker thought that the Government had thus clearly demonstrated its willingness to find a solution to this matter by pursuing a genuine dialogue. The proposals put forward by the Prime Minister represented a considerable change in the Government's position from 1984. The Government had taken note of the most recent observation of the Committee of Experts, thought that there was still scope to examine new possibilities for making progress and expressed its willingness to give consideration to any new proposals for the resolution of the problem.

Referring to the recent press information, the representative of the Government emphasized that no decision had been made to withdraw from the ILO and that no threat had been issued. He explained that the evaluation of membership of the ILO was part of the continuous evaluation which the United Kingdom Government undertook of its membership of all international organizations and the expenditure associated with them.

The Workers' members first clarified that only point 1 of the observation of the Committee of Experts was dealt with in this discussion. Referring to the long history of this case, they thought that its continuation without any resolution was a threat to the whole standard-setting machinery. The Committee of Experts' views had been clear and unequivocal from the beginning: denial of the right of GCHQ staff to join a union of their own choice is an infringement of Convention No. 87. The Government, however, consistently refused to accept the observations of the Committee of Experts and insisted on its own interpretation of Convention No. 87. As regards the interrelationship of Conventions Nos. 87 and 151, nothing overrode Convention No. 87. As to the second argument that GCHQ should be treated as a military establishment, if the Government could not put them in uniform, they were not military personnel in the context of this Convention. Regarding the question of a conflict of loyalty in the case of strike, the right to strike was a separate issue from the issue involved in this case. Referring to the Government's indication that the existence of GCHQ had recently been publicly admitted, the speaker noted that it should also be publicly revealed that trade unions had existed in that organization for about 40 years before the right to organize in that area was taken away. He also stated that despite the number of hours lost through strikes the full coverage of the operation was ensured because the trade union members in GCHQ were loyal citizens to the country.

In the 1992 discussion of the case, not only the Workers' members but also Government members and Employers urged dialogue between the United Kingdom Government and the trade unions. The Committee then "expressed its deep concern at the continuing refusal of the Government to implement the Convention as regards the situation of workers at GCHQ who still did not enjoy the right to join a union of their own choosing". Stressing that three years had elapsed since the Committee's hope for substantial progress, the Workers' members thought that the conclusions and how they should be expressed should be made only after the discussion as to how this case should be concluded.

The Workers' member of the United Kingdom continued the second part of the statement of the Workers' members. He first pointed out that in Britain agreements between unions and employers could be legally enforceable if the union concerned and the employer so wished, and that the trade union did suggest it as one of the contributions in meetings with the Cabinet Secretary. Secondly, there was nothing unusual about a mixture of civilian and military personnel working together. Thousands of members of his organization worked in the Ministry of Defence, worked with military personnel, managed military personnel as serving officers or are themselves managed by serving personnel.

Referring to the assurance made by the Government in 1992, he noted first that the conclusions of the Committee were reported to the Government, second, the dialogue with the trade union was resumed and remained open. The third point was that the Government would continue to look within the dialogue for a solution safeguarding the security of the country and acceptable to the parties involved. He agreed with the Government representative that the discussions with the Cabinet Secretary and the meeting with the Prime Minister were in good faith. During such meetings, the issue remaining between the two sides was a question of conflict of loyalty. As regards the offer of affiliation of GCSF to CCSU, the speaker explained the reasons why the workers rejected it. Firstly, the workers asked if GCSF would be free to affiliate to the Trades Union Congress or if it would be free to undertake transfer engagements. The answer appeared negative because of the possible conflict of loyalty, while the Government was prepared to consider the removal of the veto that the Director effectively had. The GCSF was thus not independent as it was supposed to be. Secondly, it would not have provided a solution in conformity with Convention No. 87 since there is no freedom of choice. Thirdly, it would bring no benefit to anybody, as the CCSU was no longer able to negotiate with the Government, except for the question of pensions, because the Government was ending national bargaining.

At the meeting with the Prime Minister, on the technical items on national security, workers did make proposals which would be acceptable to Government. As for the no-strike agreements, they offered to look at having legally enforceable contracts but the Ministers in the Government believed that there was a conflict of loyalty in being a national trade union member and being employed at GCHQ. Therefore, in spite of the willingness of the Government to continue dialogue, there seemed to be no proposals that workers could make to overcome this perceived conflict of loyalty.

Referring to the threat concerning membership of the ILO and a special paragraph, the speaker noted a direct press interview by the responsible Minister saying that if there was a special paragraph, then the position of Britain in the ILO was in jeopardy, which caused workers in the United Kingdom great concern. He added that in recent discussions with Ministers and the Cabinet Secretary, the Ministers said that special paragraphs were for military dictatorships. The same rule should apply to every country irrespective of its state of development, of its contribution to the ILO and of its size. The question was how to bridge the gap with the Government when the problem was only in Ministers' minds. The Government had no proposals and said that the trade unions should have them. So there had to be a solution or a special paragraph. The speaker concluded by recalling the fact that 11 years ago members of his organization, some of them for 30 years, were taken away by a sudden decision by the Government in contravention of Convention No. 87.

The Employers' members did not think it necessary to recall the details of the well known history of a case which first appeared on the agenda of the Committee in the middle of the 1980s. In addition, they were not directly concerned with a problem which did not involve private employers. This case was characterized by an unusual attitude of the two parties to stick to their respective positions.

Few new elements had been brought since the last discussion of this case. Discussions and negotiations took place, including at the highest level with the Prime Minister, but without reaching an agreement. The proposal by the Government of an independent staff association was rejected, while the Government did not want staff at GCHQ to join the TUC. The problem would have perhaps been resolved if this organ had been put under the authority of the Ministry of Defence or if the workers had been given military status, as was the case for activities of this type in certain countries. However, in the present situation of the case, it could only be resolved by conciliating two positions of principle, as recommended by the Committee on Freedom of Association: the Government's will to ensure that the service of GCHQ was not interrupted on the one hand and the determination of the workers that Convention No. 87 should be fully applied to them on the other.

They noted the Government's indication of their willingness to continue the dialogue and hoped that sufficient common sense and goodwill would be shown there so that a satisfactory solution could be found. Concerning the so-called "threat" referred to by the Workers' member of the United Kingdom, which the Government representative stated was without basis, it had no more to do with the work of this Committee than the prospective elections.

The Employers' member of Sweden pointed out that the Committee of Experts itself recognized that the staff at GCHQ ensured functions identical to those provided in other countries by military institutions, and that the exclusion of armed forces provided by Convention No. 87 would have been fully applicable to them, had they been administratively placed under the authority of the Secretary of State for Defence. The entire case should therefore be regarded as a purely administrative issue and not one of human rights.

He thought it regrettable that this case was treated, both in the United Kingdom and in the international sphere, as a main preoccupation of the ILO in the field of human and trade union rights, also taking into account the relatively small number of persons concerned. The attacks on the United Kingdom Government for a decade were particularly incomprehensible, taking into account that the ILO was practically silent for nearly a half century concerning the enormous and systematic violations of human and trade union rights in the Soviet bloc. Where were the proportions? He also found it obvious that it was for political purposes against a particular government or certain types of policies that the Workers' group had given the case such proportions. The speaker thought that it was not good for the ILO to be used for such purposes.

The Workers' member of the United States regretted that, after 11 years, the only new thing was the pressure from the Government on this Committee, threatening the withdrawal from the ILO if its rules were applied to the United Kingdom. It was without precedence that a country used such a threat of financial and diplomatic consequences to challenge the very integrity of this Committee and also the ILO itself. The rules should be the same for everybody, even for the rich and powerful.

The Workers' member of South Africa thought that this case concerned not only the United Kingdom but also a question of principle. In South Africa, the Government had proposed to deprive workers in the National Intelligence Service of their trade union rights. This was stopped by the workers who were determined to bring such violations of Convention No. 87 before the ILO if necessary.

He stressed that the Government of the United Kingdom did not comply with the recommendations of the Committee of Experts and even made the intolerable action of threat. To another country, this Committee did urge today that Convention No. 87 be fully respected. This was no doubt a particular case, but the principles were the same and should be applied equally. In contrast with the United Kingdom Government, the workers at GCHQ were not asking for special treatment. This Committee should maintain its consistency and strong will as to its principles.

The Workers' member of Germany deplored that a strong country with such a long tradition of democracy ignored the recommendations of the ILO. The situation of trade unions in the United Kingdom probably caused less problems than in other countries outside Europe. But if an interpretation was made to justify a special treatment for this case, it would ruin the principles of objectivity and universality in the supervision of standards' application, and it would also give the impression that special paragraphs were only for developing countries. It was true that these countries do not have the same means of influence and pressure.

The question of a special paragraph had already been discussed by the Committee at the end of the 1980s but so far these warnings have not led to a constructive solution. It was incorrect to think that the two parties were equally insistent in maintaining their principles: the workers had demonstrated their willingness to take account of the requirements of their security. In addition the problem should not be reduced to a purely administrative question since it was the very principle of the freedom of association that was challenged. The employers should consider the consequences upon their own right to organize if such a restriction was to be tolerated. For all these reasons the speaker thought that the Committee should take a firm position on this case.

The Workers' member of Canada first reacted to what appeared as a form of threat that the United Kingdom Government would withdraw from the ILO if it was treated like any other governments. Referring to the statement of the Government representative that no decision had been made to withdraw from the ILO and that such a decision would require careful evaluation, the speaker felt that it was obvious that the Government should have evaluated carefully their statement to the media. It was not the workers but the Government who had made this case a high profile one in the media.

In addition, some Government members expressed their irritation by this case coming back again. But all the members of this Committee had good reason to be irritated by the attitude of a government that insistently refused for 11 years to follow the recommendations of the authoritative bodies of the ILO.

Therefore, the speaker thought that the Government of the United Kingdom should not be discriminated against: after all the procedures exhausted during the last 11 years without the Government's complying with the requirements, a special paragraph was warranted.

The Workers' member from India summarized the principal problems. He indicated that he agreed with the declarations made by the Workers' members and that this case demonstrated an unfair and unreasonable practice on the part of the Government which violated trade union rights. Furthermore, a trade union was acceptable to the Government only if it was recognized as independent from the TUC. During the past 11 years the Government had been negotiating, but the delay in reaching solutions was also a denial of justice. The United Kingdom was wealthy and influential. Therefore the ILO should be careful not to apply a double standard or give special treatment in favour of the United Kingdom which would not also apply to developing countries. The present Committee always asked developing countries to immediately remedy violations of the Conventions. An inequality of treatment in favour of the United Kingdom would give rise to suspicion and damage the image of the ILO. Consequently, the case should be mentioned in a special paragraph, unless the Government gave assurances that it would resolve these problems in the near future, that the TUC can resume its presence in GCHQ, and that the original statute concerning the workers at GCHQ will be restored. The argument that a special paragraph would be used in the coming elections against the Government was totally unacceptable in this case.

The Workers' member of France stated that in the last few years the Government had made few credible arguments and that it was contradictory to have a civilian status if, as had been demonstrated, the workers at GCHQ carried out military functions. The United Kingdom was an important democratic country which formed part of the OECD and the G7; none the less, the Government exempted itself frequently from the social standards of the European Union and had violated the union rights of workers at GCHQ over the past 11 years. Furthermore, the Government had threatened to withdraw from the ILO if the Committee adopted a special paragraph. The Committee should not give in to such a threat. The statements of the Government representative gave a bad impression of the United Kingdom in the world. If this country continued to violate the social standards and the Conventions of the ILO, it would be converted into a free enterprise zone and unfair competition would exist. The contradiction between the United Kingdom's actions in promoting a social clause at the international level while at the same time reducing the rights of trade unions in the United Kingdom, an industrialized country which was one of the wealthier countries, warranted that the Committee adopt firm conclusions.

The Government member of the United States noted that this was one of the most difficult cases the Committee had ever discussed. She explained that, on the one hand, it was impossible to deny that freedom of association, including forming and joining a trade union of one's choice, was as basic a right in industrialized countries as it was in developing countries. On the other hand, this particular case had an extremely narrow scope, involving a relatively small number of highly technical employees dealing with matters of national security which were military in nature, and the potential conflict between loyalty to one's employer and loyalty to one's union was a very real concern. On the two previous occasions the Committee had discussed this case, her Government had joined in a strong, tripartite recommendation that the United Kingdom Government engage in substantive, frank and constructive dialogue carried out in good faith, so that a mutually satisfactory solution could be found that would be in conformity with the Convention. She regretted that the problem still had not been solved. She hoped that the present Committee would once again send a clear and strong message to the Government, and that the message would once again be unanimous. Such a unified signal was the best way for the ILO to encourage continued, genuine and intensified dialogue on the matter of freedom of association at GCHQ, so that once and for all this case could be resolved.

The Workers' member from Argentina expressed his concern over the attitude of the Government concerning this case for the last 11 years, and the fact that it had done nothing beyond making unfulfilled promises. The Committee on Freedom of Association had strongly urged the Government to strengthen its efforts to comply with the Convention. In previous years the Government had repeatedly defended the universal application of ratified ILO Conventions, without exception. In this case, a violation of Articles 2 and 4 of the Convention continued to impede the right to organize for a group of workers who had not been excluded by the Convention. Measures had been taken against their freedom of association; and in 1983 almost all members of the union had been dismissed. He considered that the Committee should adopt a special paragraph to demonstrate impartiality, independence and the need to apply the same rules to all countries.

The Government member of India stated that liberty came with certain obligations; therefore application of certain reasonable restrictions on fundamental rights of liberties was well recognized. What was a reasonable restraint was a matter of policy evolved in a specific ethos. In the particular case of GCHQ, the workers were not denied a right to representation through a grievance-registering mechanism. And the employers in question clearly performed functions flowing from the exercise of the sovereign power of the State, making them distinct. For these reasons, the restrictions imposed by the Government of the United Kingdom were reasonable, and this case was an example of the need to make the interpretation of ILO Conventions more flexible. The real functions of these employees should be taken into consideration instead of merely their civil or military status. ILO bodies must avoid a legalistic and rigid interpretation of Articles 2 and 9 of the Convention. Therefore the Committee should recommend that dialogue should continue, and the parties should be more flexible, but a special paragraph in the case of the United Kingdom was not only inappropriate, but unfair.

The Workers' member of Japan noted that the Committee of Experts had consistently asked that measures be taken by the Government concerning this case. Unfortunately, the measures had not been taken, leading to a double standard where the Government asserted its own interpretation of the Convention. If the Committee gave in to one government under mounting pressure, it would set a negative precedent. In this case the principles of independence, objectivity and fairness of the ILO supervisory machinery were at stake.

The Government representative of Germany set out the problems in this case and summarized the position of the Committee of Experts and the Committee on the Application of Standards in the last years. He recalled that the Committee of Experts had noted that this was an exceptional case. It had not asked directly that the legislation or practice in the United Kingdom change, but rather that the discussions be resumed in order to comply with provisions of the Convention. However, the situation had not improved and the parties could have done more. Therefore, the Committee should ask for other measures, but it should not adopt a special paragraph. The adoption of a special paragraph required the existence of both a sustained violation and a certain measure of gravity. Although there had been a sustained violation, the violation was clearly not so grave in comparison to other cases in respect of which the Committee had adopted a special paragraph. In the present case, involving 13 employees working at the GCHQ (at least as of three years ago), who had not made use of three options available and had not suffered either physically or financially, the question was whether they had been granted the full freedom of association rather than the right to organize. It was never alleged that any of these employees suffered any physical, or even financial, detriment. It had been mentioned numerous times that there would be no failure to comply with the Convention if the United Kingdom Government simply decided that these employees should be placed under the Ministry of Defence, indicating that the real issue in the case was the nature of the functions performed. Therefore, a clear difference existed in this case, as far as gravity was concerned, which made it difficult and impossible to support a proposal for a special paragraph. There was a danger that the special paragraph would lose its meaning and importance if it was adopted in this case. While recognizing that the Government did not seem to be ready to take all the necessary measures, the speaker hoped that there would not be a vote on this matter and indicated that, if there were, he would vote against a special paragraph.

The Workers' member of Finland, speaking on behalf of the Workers' members of the Nordic countries, stated that the United Kingdom Government's delay tactics had called into question the effectiveness of the ILO supervisory bodies. By opposing conclusions of the ILO supervisory bodies in this case, the United Kingdom Government had behaved contrary to both the Constitution of the ILO and the basic rules on which the ILO supervisory machinery was based. Taking into consideration the length of this case, strong actions and a special paragraph should be taken in order to secure the observance of Convention No. 87 in the near future.

The Government representative of Canada observed that the possibility of GCHQ workers joining other organizations created a risk which was a legitimate concern for the Government, and which was recognized as such by the Committee of Experts in its observations. It was perfectly within the realm of Convention No. 87 to prohibit the right to strike to workers in such sensitive and security-related areas. In other countries, public or civil servants engaged in similar duties were usually exempt from the scope of that Convention because they were usually included in the military or defence department. For this reason, a special paragraph clearly was not appropriate in this case, although the Committee should once again call upon the Government to resume dialogue. She stated that this case was not so serious as to warrant such attention in the light of so many other cases of much more grave violations but noted that it had existed for too long a time.

The Government member of Uruguay noted with concern that despite the observations of the Committee of Experts and the present Committee the parties had not arrived at positive results after such a long time. He was surprised that the Government representative had alluded to possible doubts concerning the loyalty of the civil servants in question toward the employer, since he believed that the issue of loyalty was set aside in 1991, given the statement by the Worker member of the United Kingdom in this respect. A solution to this problem could be reached by making a clear distinction between the possibility of freely affiliating with a union and the question of eventual limits on the right to strike. The speaker hoped that the democratic tradition of the United Kingdom would permit it to avoid a possible vote by the present Committee, and would assist in resolving the problems in question in the coming year. None the less, the Government must accept a definite compromise. Lastly, the speaker indicated that it was not good that this type of discussion on such a problem had been prolonged for so many years.

The Workers' member of Turkey stated that some governments of the developing world which did not fulfil ratified Conventions in their countries, when criticized by the present Committee, had tried to discredit the ILO by alleging that the ILO was an organization dominated by industrialized countries, which humiliated poor countries. This case was important for refuting these accusations. Therefore, he urged the Committee to resist any attempts to apply a double standard and to adopt a special paragraph.

The Government representative of Australia, after summarizing the problems and the position of the Committee of Experts and the Committee on the Application of Standards in the last years, noted that the United Kingdom case was only one of 59 observations by the Committee of Experts on Convention No. 87, covering countries from all regions and at various levels of development. This demonstrated the rigour of the ILO supervisory processes in seeking to protect the fundamental rights of workers. The speaker concluded by stating that the protection of workers' rights in this case should be made with a positive approach, seeking that the parties reach agreement.

The Government member of France indicated that this was an important and delicate case since it involved the principles of freedom of association which governments should respect, above all if they have ratified the Convention. The United Kingdom should be treated the same as all States and impassioned debates on this issue should be avoided. The options available to the present Committee made it less urgent to adopt a special paragraph. Following a jurisprudence, developed from considerable experience, the special paragraph procedure applied to all member States, regardless of their geographic location or their level of economic development, whenever two circumstances existed: when a grave failure of application persisted, or when there was a belligerence on the part of member States which resulted in grave violations of human rights, such as imprisonment, violence, arrests and assassination of union activists. The speaker believed that both conditions did not exist in the present case and summarized the position of the Government member of India favouring dialogue and discussion between the parties to resolve the serious but limited conflict.

The Government representative of the Netherlands suggested that the United Kingdom Government could accept an advisory mission of the ILO to facilitate negotiations between all the parties concerned.

The Government representative of South Africa supported the proposal made by the Government of the Netherlands, based on the length of the problem and its own experience of how very difficult disputes could be successfully resolved and reconciled by an ILO direct contacts mission.

The Government representative of the United States concurred with the proposal to request the United Kingdom Government to invite an ILO consultative mission to the United Kingdom to help seek a solution to the problem. Her Government would support Committee conclusions in this direction.

The Government representative of Turkey expressed objection to the inclusion of this case in a special paragraph.

The Government member of the United Arab Emirates, speaking also on behalf of the Government members from Saudi Arabia, Oman and Kuwait, supported the recommendation of the Committee of Experts urging the Government to adopt measures to resume dialogue with the trade unions with the objective of reaching a satisfactory solution for all of the interested parties. In order to arrive at a solution, it must be taken into account that this was a limited problem which should be considered in its appropriate dimensions. A clear distinction should be made between the right to organize trade unions and the right to strike. The status of the workers in question also must be taken into consideration, whether civilian or military. Furthermore, all of these points should be considered with regard to the context, culture and tradition of the United Kingdom. The Committee should find a solution by urging both parties to resume the discussions, but this case did not require a special paragraph.

The Workers' member of the Netherlands referred to the statement made by the Government member of France and indicated that the second criteria mentioned to adopt a special paragraph - the existence of gravity and problems involving questions of human rights - was not correct. He asserted that other types of violations also could be the subject of special paragraphs, and that was the criteria the present Committee followed. Otherwise, special paragraphs could only be addressed to military dictatorships.

The Government representative of the United Kingdom welcome the debate which he followed with much interest and expressed his agreement with the statement made by the Government member of France on the climate which had surrounded the debate which had made it a sober and responsible discussion. Many speakers had recognized the complexity of the situation and the difficulty in finding solutions. He emphasized that there was no truth to the suggestion that the United Kingdom had decided to withdraw from the ILO if a special paragraph were to be adopted. The Committee should decide the case on its merits and not on extravagant press information. Regarding the circumstances for adoption of special paragraphs, it was fundamental that all countries be regarded as equal concerning compliance with ILO standards. The United Kingdom Government did not want to be treated differently from other countries. However, special paragraphs must be reserved for serious cases. The issue of proportionality was important here, as had been noted by various speakers. In this respect, the situation at GCHQ was very particular. Workers had the right to join a union in the great majority of workplaces in the United Kingdom and if they were dismissed or their rights violated, legal redress existed. The speaker rejected the idea put forth by various speakers that the rights of workers in the United Kingdom were trampled under foot. The Government representative concluded by indicating that the proposal to send a mission to the United Kingdom was not for him to decide. None the less, if this proposal was adopted it would be considered by the Government.

The Workers' member of the United Kingdom noted that there were a number of errors in some of the statements, starting with the Employers' member of Sweden who failed to realize that the transfer of civilian staff of GCHQ to the Ministry of Defence would have created the same problem because the latter organization is unionized by civil service unions and would have resulted in the same loss of rights. He further noted that his union and all civil service unions in the United Kingdom are apolitical and are proud of serving governments, whatever their politics.

The speaker referred to the statement of the Government representative of Germany concerning the situation at GCHQ and noted that 7,000 people lost freedom of association rights in 1984; the figure 13 apparently came to mind because 14 people were dismissed.

He took exception to the Government representative of Canada's statement concerning the desire of GCHQ staff to join other unions. He emphasized that for the past 11 years they had had no rights to belong to any union, only to the staff association. No previous guarantees had been broken by the unions. Two of the civil service unions had repudiated agreements in 1984, but he recalled that the first party to repudiate such agreements in 1984 was the Government itself.

The speaker endorsed the Netherlands Workers' member's point and was straightforward concerning the need for a special paragraph: what he wanted was the restoration of trade union rights guaranteed under Convention No. 87 which were taken away from GCHQ staff 11 years ago. He renewed his willingness to engage with the Government in meaningful dialogue, although he noted that the Government failed to suggest any way in which it could be meaningful. He observed that everyone in Britain has legal recourse against individual dismissal, except those people employed at GCHQ who no longer have access to industrial tribunals. They had been forced to accept Š1,000 in exchange for losing their rights.

The speaker then welcomed the proposal by the Government representative of the Netherlands to send an ILO fact-finding and conciliation mission to the United Kingdom if this would stimulate meaningful dialogue.

The Workers' members congratulated the Government representative of the Netherlands for his suggestion that an ILO mission might be helpful and regretted that this suggestion came so late in the debate. They felt that such a mission might change the Workers' feelings with regard to a special paragraph.

The Workers' members observed that notwithstanding a certain sense of drama surrounding this case, it was a part of a slow procession of cases before the Committee. It had elements in it, however, which the Workers believed to be important and wished to emphasize in the debate.

Indeed, taking most of the Governments' statements into account, it was the Workers who should be threatening to leave the ILO and not the United Kingdom Government, because some of the statements made on this case were at their best, malign, and at their worst, mischievous, so that the discussion in this Committee stumbled from equivocation to downright misrepresentation. The whole issue was bedeviled by the special paragraph - the whole question of the special paragraph influenced the debate.

In the first place, the Employers attempted to play the issue down as an embarrassment that should go away. They made a valuable point, however, in reminding the Committee of the two points raised by the Committee on Freedom of Association when it first considered the case: firstly, that there should be an uninterrupted service at GCHQ if there was to be a settlement of this case and, secondly, that there should be a right to join a union for the staff, a union of their own choosing. This had also been the view of the Committee of Experts throughout, fully shared by the Workers who could not be accused therefore of taking an extreme position. They believed, however, that a boil, this particular boil included, had to be lanced if a cure was to be effected. Incidentally, the Workers' members rejected the insulting and false remarks made by the Employers' member from Sweden that the Workers' group stood by silently when the Soviet Union and the Eastern bloc were abusing human rights.

With respect to the comment of the Government representative of the United States emphasizing the small number of people at GCHQ and the fact that they were professional and technical staff, the Workers stressed that professional and technical workers were just as entitled to trade union rights as anyone else and one should not thrust them aside merely because their numbers were small.

Referring to the interventions of the Government representatives from Germany and France, the Workers' members argued that the key issue for a special paragraph was sustained violation, consistent refusal of the Government either to take notice of the Committee of Experts or of the conclusion of this Committee, or both. Special paragraphs, historically, had been given on a variety of cases including on purely technical cases involving no deaths, no outrage, no human rights violations. It was important, as far as this Committee was concerned, to clear up this confusion, which was used as an excuse to prevent any discussion of a special paragraph in connection with GCHQ, and not to have in any future discussions on this case, or any other case, the argument that special paragraphs had a special character because they should only be proposed when major human rights violations were concerned.

With respect to the arguments advanced by the Government representative of Canada that the GCHQ had got a union and therefore had nothing to complain about, the Workers' members pointed out that it was in fact a government-sponsored union, a house union, which was under the complete control of the Director of GCHQ. They also pointed out that the argument according to which Convention No. 151 had to override Convention No. 87, already very long ago had been rejected by the Committee of Experts as totally irrelevant.

Concerning a number of other government contributions which were helpful, they singled out one question which was strung through the debate, and this was about the military nature of the operation. According to one Government representative, for example, had GCHQ staff been under the Ministry of Defence it would have escaped. The Workers' members stressed that it was not possible because people working there were not military, they did not wear uniforms, they were not under service traditions and they did not get service pay, so this confusion should also be put out of the way. Indeed, there were trade unions throughout the Ministry of Defence where civilians worked with the military only GCHQ staff were excluded.

Coming to the issue of the special paragraph, the objective of the Workers' group was not a special paragraph for itself. The Workers did not believe, in the light of the attitude of the Government representative from the United Kingdom, that a special paragraph would change the situation. The issue has become a sort of political football within the governing party in Great Britain and the Workers did not want to play any part in political manoeuvring. This was not a political issue as far as the Workers were concerned, but the Workers' group, like everyone else, wanted a solution and a special paragraph in itself was not a solution, it represented at its best a spur to action or the ultimate frustration of the Committee. While on that basis a special paragraph in this case would be more than justified, the Workers' group supported the suggestion made by the Government representative of the Netherlands, and supported by others, for a conciliation mission, which might represent a road to a solution. In this connection, the Workers' group stressed the need for such a conclusion as to be virtually unanimously accepted by this Committee - Workers, Employers and Governments - and which should firmly invite the United Kingdom Government to accept the mission offered. There was no humility involved in them accepting this offer, but it should be recognized that a subsequent refusal either to accept the request when it was made or failure to take into consideration any suggestions which might emerge, will be viewed by everybody on this Committee as undermining the standard-setting aspects of this Committee's work. The Workers did not want to threaten anybody, nor to set time-limits, but time was running out on this particular issue and they hoped therefore that a mission, if accepted, could take place as quickly as possible and that conclusions could be reached in sufficient time for any discussion that might take place in this Committee next year, in sufficient time for it to have the knowledge that the mission had taken place and that the conclusions and the helpful nature of what they had done had produced a solution. On that basis, the Workers agreed to draw up a conclusion on this case for this year which would not be included in a special paragraph.

The Employers' member of Sweden, referring to his previous statement, explained that he did not accuse the Workers' group for not having criticized the Soviet bloc, but had talked about the disproportionality of this case.

The Workers' members accepted his apology.

The Workers' member of the United Kingdom, speaking on a point of order, repeated the comments he had made during the previous sitting in rejecting the accusations that there was a political motivation to the TUC bringing a complaint about the GCHQ at the request of the Council of Civil Service Unions who were the unions in GCHQ prior to the ban. All the unions in the Council of Civil Service Unions were trade unionists who did not affiliate to the Labour Party in Britain and were proud of being non-political in order that the British civil service should be non-partisan and serve efficiently governments of whatever political colour.

The Employers' members refrained from commenting on what had been said by individual delegates because those persons would not have the opportunity to react again. Nor would they be used to making conjectures on the sense to be given to an intervention. They would hold to what had been said but still wished to make some remarks of substance on two subjects. On several occasions, reference had been made to the question of the authority of the supervisory machinery and some people felt that this authority was being called into question. This was not totally appropriate because it overlooked the difference between domestic law and the way in which domestic law was implemented, and international law. International law was based on the wish of a country to be a member of an international organization, on the voluntary pursuance of the rules of an organization by a State. There were no ways of enforcing such legislation apart from trying to convince countries to obey the rules, and the ILO had a very well tried and tested procedure for supervising its Conventions, which was exemplified by the many hours of discussion on this case.

A second point which played an important role in this debate concerned the question of equal treatment; this was raised on several occasions, particularly in connection with a special paragraph. Equal treatment in the special terminology of the ILO meant the avoidance of any double standards. The emphasis with which this point was made seemed to be rather exaggerated because nobody would say they were not in favour of equal treatment. However, one could not establish what was equal treatment with some kind of a ruler or with a stopwatch, there were certain aspects to be taken into account, including the length of period that a case had existed and was being discussed. In this Committee there had been a whole number of cases which were dealt with at greater length than the case of the United Kingdom. Some of the cases had a tradition of more than 20 years and in most of them, in fact, there had been no special paragraph because what was decisive was certainly not the length of a case, but the content, the weight to be attached to a particular case. The Employers believed that the case of the United Kingdom was a very special case and for the Convention it was an atypical case. It was of a relatively limited dimension, it was not about freedom of association being called into question for a whole country, but about a small group of people in a semi-military profession. Nevertheless, the Committee had to find a solution for this case also, and the Employers regretted that up until now no solution had been found. They were demanding that serious efforts be made in order to bring about such a solution, which must be found basically by the parties to this dispute themselves. They must have to accept it and must be able to implement it. But it could also be useful to have a mission sent to the United Kingdom to provide additional assistance in bringing about the solution.

As regards the question of the special paragraph, on which there were many theoretical comments on the usefulness and on the harm which could possibly be done by such a measure, the Employers did not need to adopt a position because nobody had requested this special paragraph.

The Committee noted the oral information supplied by the Government representative, as well as the wide-ranging discussion that took place thereafter. In the discussion concerning this case, many references were made to the length of time which had elapsed since the case first came before the Committee and to the views expressed by the Committee on previous occasions.

The Committee deeply regretted and deplored the fact that the Government had not taken action to resolve the issues underlying the case.

In these circumstances, the Committee had given some consideration to the adoption of a special paragraph concerning this case. While a significant number of members of the Committee were disposed towards the adoption of a special paragraph, the majority were prepared to extend to the Government a final opportunity to resolve the issues.

In this respect the Committee had noted the Government's statement that further dialogue was possible and desirable.

The Committee hoped that it would be possible, with the exercise of common sense and goodwill, for a satisfactory resolution of this case to be reached in the near future. The Committee invited the Government to receive an ILO advisory mission to help this process.