Cas individuel (CAS) - Discussion : 1989, Publication : 76ème session CIT (1989)

A Government representative recalled that, as a founding member of the ILO, his country continues to support its aims, objectives and activities. He then pointed out that public service workers in his country have broader freedoms to organise, bargain and strike than public servants in most other countries, and indeed are treated no differently from workers in other sectors of the economy. By contrast, in other cases considered by the present Committee, public servants had been entirely or partly barred from the right of association.

The Government appreciated the work done by the Committee of Experts, which had a difficult and complex task in looking at the application of conventions and interpreting them in the light of national laws and in the context of the diverse socio-economic factors and institutional structures in each country. The Committee of Experts was a distinguished authority in law whose opinions were respected. But in complex areas there were often divergent views, even among experts and within rational and democratic organisations - of which the ILO must surely rank as a leading example - it should be possible to say: yes, we understand why you came to these conclusions, but we think it is possible to make a different interpretation.

The Government's actions in respect of the General Communications Headquarters of Cheltenham (GCHQ) were taken solely in the interests of protecting national security. Although the GCHQ was not part of the Foreign and Commonwealth Office, it was in fact one of the security and intelligence services and formed and integral part of the United Kingdom's organisation for defence and national security. It provided vital indispensable operational support to the armed forces of the United Kingdom and its allies, including a continuing watch for any form of armed hostile activity. The speaker conveyed his Government's disappointment with the Committee of Experts' rejection of the argument that the workforce at GCHQ might fall within the scope of the "armed forces exemption" in Article 9 of the Convention. The functions of GCHQ were very closely connected with those of the armed forces and the Government found it hard to believe that GCHQ would not fall within the spirit of the exemption. Consequently, this was very much the kind of borderline case which Convention No. 151 was designed to clarify. GCHQ should operate continuously if national security needs were to be met and there had been severe disruption there through industrial action, with 10,000 work-days lost between 1979 and 1981. The Government's actions had been taken in the firm belief that it was unacceptable to have a top secret intelligence establishment vulnerable to national strike action.

In framing its Conventions, the ILO had taken account of the special issues which in matters of national defence and security; Convention No. 151 contained a specific exclusion clause for those involved in work of a highly secret or confidential nature. In formulating its action on GCHQ the Government took the view that it remained within the letter and spirit of these instruments. Convention No. 87 could and should be examined in conjunction with Conventions Nos. 98 and 151. It appeared to the Government that because of earlier disputes about the application of Convention No. 87 to the public service, an instrument dealing specifically with this area - Convention No. 151 - had been adopted and this new Convention took precedence over the generality of Convention No. 87. The Government's interpretation of the preamble of Convention No. 151 was that it had been adopted with the two earlier Conventions in mind. Conventions Nos. 87 and 151 were interwoven with each other to such an extent that the power in Article 1(2) of the latter Convention to disapply the guarantees provided by that Convention would be of no utility or practical effect unless it was intended to have the effect of disapplying also the associated provisions of the earlier Convention. This meant it was for governments to determine - by means of national law and regulations - the extent to which the protections provided for in the Convention applied to public service workers engaged in highly confidential work: this was precisely what the Government had done.

The speaker noted that the Committee of Experts stated in its observation that the supervisory bodies of the ILO have consistently disagreed with the Government's view. The speaker indicated, however, that the same Committee previously acknowledged (in its report to the 1985 Conference) that the interpretation of the Conventions adopted earlier by the Committee on Freedom of Association was not the only sustainable one and was not necessarily definitive. The Committee of Experts was on record as recognising the difficulties inherent in interpreting the interrelation of these Conventions. In addition, the Court of Appeal in the United Kingdom specifically considered this issue, concluding that the Conventions should be read together and that Article 1(2) of Convention No. 151 took precedence over Convention No. 87. Therefore, the Government did not believe that its actions at GCHQ represented a breach of Convention No. 87.

The Government noted the Committee of Experts' expression of regret that 13 employees at GCHQ have been dismissed because of their refusal to give up membership in the union of their choice. The Government also deeply regretted the necessity of that action, which was not taken lightly. The speaker then set these dismissals in the context of developments at GCHQ, every opportunity was extended to the small group of staff who retained their membership in a national trade union to accept the terms and conditions of employment that were introduced on that date or, where practicable, to transfer to other employment in the Civil Service. The overwhelming majority of staff at GCHQ (98 per cent) accepted the new conditions of service. Nearly all the remainder either transferred voluntarily to suitable posts elsewhere in the Civil Service where they could retain their union membership, or opted for voluntary departure with the generous compensation normally paid in cases of redundancy. On 15 July 1988, the Government wrote to the remaining 18 employees who had either failed to leave their national trade union, or had rejoined trade unions after initially accepting the new terms of service, formally enquiring whether they were still members of a national trade union and reminding them that, if they were members, they were in breach of their conditions of service. On 29 September 1988, the Government announced that it proposed to transfer the few remaining trade unionists for whom alternative posts could be found; to terminate with compensation the employment of the so-called "non-optants" - those who had refused either to leave their union or to be transferred - for whom there was no realistic chance of finding alternative posts; and to institute further disciplinary proceedings against the "rejoiners" - those who had initially accepted the new conditions of employment but subsequently resumed their union membership - if they did not agree to leave GCHQ voluntarily with compensation. The possibility was, of course, at this stage, still open to those concerned to accept the conditions of employment at GCHQ and to remain there, and the government very much hoped that they would do so. By the end of October 1988, 17 trade union members remained at GCHQ. Of these, ten were "non-optants" and seven were "rejoiners". Of these 17, three were transferred to alternative jobs within the Civil Service, one rejoiner accepted premature retirement; and the remaining 13 were dismissed. Of the 13 who were dismissed, the seven non-optants received generous compensation and the six rejoiners received, ex gratia, six months' salary in lieu of notice. There are now no members of national trade unions at GCHQ, but there is a staff association which enjoys many of the rights of collective organisation except the right to strike. Over half of the employees at GCHQ are members.

The Government noted the Committee of Experts' view that it should undertake renewed negotiations with the relevant national trade unions. In fact, discussions were held with the national trade unions following the Government's announcement of 25 January 1984, and in those discussions the unions urged that a "no disruption agreement" would provide adequate safeguards. These proposals, which were of a limited nature, leaving the determination of the areas to be covered by the agreement for later negotiation, were very carefully considered by the government but had to be rejected, as they did not provide sufficient guarantee that conflicting pressures would not produce difficulties in the future. Support for this conclusion was taken from the fact that the draft "no disruption agreement", which had been tabled by the Council of Civil Service Unions, was subsequently repudiated by two of the main trade unions concerned at their 1984 annual conferences. the unions formally rejected any negotiations directed towards the possibility of concluding a no-strike agreement at GCHQ. The Government recognised that the trade unions subsequently indicated that they might change their position on this point, but this possibility itself supported the Government's position. It was essential in the national interest to ensure the uninterrupted future operation of GCHQ and, clearly, this could not be guaranteed if agreements entered into by the unions representing the workers concerned could be repudiated at any time in the future as a result of a change in position of the unions concerned. The Government was also aware that very few trade unions in the United Kingdom had been prepared to enter into no-strike agreements and that a union which would voluntarily sign such an agreement, to ensure arbitration rather than strikes as the end result of any dispute, could find itself in severe difficulties with the rest of the trade union movement. Thus, for example, the Electrical, Electronic, Telecommunication and Plumbing Union (EETPU) was expelled from the Trades Union Congress (TUC) in September 1988 after entering into single-union no-strike agreements with two private companies. The Government therefore considered that in the specific context of GCHQ, and the national defence interests it served, further negotiations with the relevant trade unions could not possibly serve any useful purpose.

While, in the Government's view, the traditions and culture of British trade unions would make it impossible to revert back to representation by national unions at this particular defence establishment, the Government's action, was limited to GCHQ within the organisational control of the armed services; If the workers at GCHQ, undertaking the same tasks within the same establishment, had been reclassified in this way then no issue would arise under the convention: it would have been an apparently easy solution. However, it would not have been a solution which, in the Government's view, was possible, either in principle or in practice. At the level of principle, the people working at GCHQ were civil servants with contracts of employment as civil servants; it would have been a breach of those contracts and of the basic rights of these workers to reclassify them; these workers certainly would have strongly and rightly objected to such an action. It followed, therefore, that if such change was to take place, it would have to be done over a very long period of time. However, the people working at GCHQ had very specific and very rare skills and the practical problems of implementing such a change were considered to be insurmountable. the government, therefore, took the view that for reasons of principle and for reasons of practice such a change was not possible.

In conclusion, the Government maintained that its action on GCHQ was not an attack on freedom of association or on trade unionism, but was taken solely in the interests of securing its national defence. Over the period since 1984 when it announced the action, the Government had made every effort to accommodate the small minority of workers who were not able to accept the new conditions of service. The outcome was not perfect, but in the context, might be seen as one which was both reasonable and practicable, and which left the United Kingdom well within the spirit, and indeed the letter, of ILO Conventions. If Conventions were to be effective, interpretation must not be too narrow; it must be appropriate, responsible and realistic.

The Worker member of the United Kingdom stated that this was a serious case, because a very deep principle was at stake. He had hoped for a sign of progress, or at least a gesture of conciliation, but it appeared that the Government had never moved from its position and had consistently repeated the same arguments on the many occasions this case was before the present Committee or the Committee on Freedom of Association.

He had listened to the arguments advanced although they were not new. Firstly, regarding the Government's statement that civil servants generally in the United Kingdom enjoyed broader freedom to organise and to bargain than those of most countries, the speaker replied that the rights provided for civil servants generally in the United Kingdom were those laid in Conventions which the Government had adopted: no more, no less. If the Government was better than other countries it was because those countries infringed the appropriate Conventions, particularly the freedom to associate. By denying the GCHQ workers that freedom, the Government was placing itself in the same position as those countries.

Secondly, as regards the inter-relation of Conventions Nos. 87, 98 and 151, the Committee of Experts had already answered the Government's argument. Convention No. 151 does not overrule the important articles of Convention 87. Each time the Government had used this argument the Committee of Experts had rejected it.

Thirdly, the argument that GCHQ workers should be treated in the same way as members of police and armed forces because of the nature of their work, the speaker - while conceding the very special nature of their work - stressed that the Committee of Experts rejected that argument; indeed with very good cause: all these workers had been members of national trade unions for 30 to 40 years; they were then as they are now - civil servants. The Government representative had pointed out himself that it would not be possible for them to be conscripted into the armed forces; they were not members of the armed forces and could not be treated as such.

Fourthly, as regards the argument that the civil service trade unions would not accept a no-strike deal because when this was suggested at one stage it was rejected by two trade unions at their subsequent conference, the speaker pointed out that there was a great difference between seeking a conference's views on a hypothetical case and an actual offer of a binding agreement; the latter had never been put to the trade unions' conferences because no offer of any kind had ever been made by the Government to the unions concerned. Indeed, only a month or two ago, there were discussions with the civil service trade unions which said they would be prepared to negotiate a watertight deal which provided positive assurances of no interruption to the work of the GCHQ. The Government should therefore do what the Committee of Experts had asked them to do - that is to negotiate a no-strike deal; if the British trade union movement refused to negotiate or refused to reach agreement the Government would then have a case that it could confidently present to this Committee. The Government was not asked anything unusual but only to negotiate.

Fifthly, as regards the argument about how generous the Government was in its compensation to dismissed or compulsory transferred GCHQ workers, no price could compensate for a denial of freedom to associate and the right to organise. The Government had already shown its so-called generosity when it bribed GCHQ staff with L1,000 each if they left their unions. The principles laid down in Convention No. 87 were not for sale and could not be bought at any price.

Sixthly, concerning the argument about 10,000 workdays lost, the speaker emphasised that this was not 10,000 of workdays lost to GCHQ. He could not reveal how many staff worked at GCHQ for that was secret information which he was not prepared to reveal, but many thousands of hours were lost each week when a large proportion of the staff went home at the weekend. That put the Government claim into its true perspective. However, the important issue here could take the form of this interesting question... since the strikes took place in 1979 and 1981 and it was 1984 before the Government actually took some measures, was it really a matter of such great urgency as far as the national security was concerned, if it took so much time?

Finally, as regarded the argument based on the judgements handed down by the British and European courts, the speaker conceded that the Government may have won on technicalities but, in this context, only one court was entitled to interpret Conventions under the Constitution of the ILO: the International Court of Justice. The Government representative seemed to argue somewhat perversely that because the possibility existed of having the Committee of Experts challenged in court then ambiguity must therefore exist. The United Kingdom Government was challenging the views of the Committee of Experts. They were creating the ambiguity. The answer to that was that the Committee of Experts had invited the Government, if it wanted to challenge its interpretation, to do so before the International Court of Justice. The Government had not done so and would not do it because, in the speaker's opinion, they already had legal advice as to what the answer might be.

It appeared that the Committee of Experts, in its appeal to the Government, put its final conclusions in about the strongest terms it could use: what the Committee of Experts wanted in fact was negotiations. The present Committee could not come back every year discussing the same thing and was entitled to have the answer to one simple question: will the Government enter into negotiations with the trade unions as the Committee of Experts has recommended, or will it not? This could be answered by a simple yes or no. This Committee should let the Government answer that question and make its judgement.

The Workers' members emphasised that all the relevant information on this case had already been given by the present Committee in its reports of 1987 and 1988, by the Committee on Freedom of Association, by the Committee of Experts - all of which had decided this issue - and, finally, by the Government representative in his present statement. Consequently, there was nothing to add on substance. Although it was decided by common agreement to limit the discussion to the first part of the observations made by the Committee of Experts on the GCHQ, the Worker members noted with concern in the light of the observations of the Committee of Experts and of the discussions which took place these last years, that this was not an isolated case but actually a situation, among many others, where unjustified measures had been taken against unions with the effect that their action, and in particular collective bargaining, was hindered. They wished to emphasise that the arguments raised by the Government representative contradicted both the observations of the Committee of Experts and the Committee on Freedom of Association. The Government is ignoring the Committee of Experts' observation that the measures taken against the GCHQ workers form part of a systematic restructuring of the labour relations legislation. They emphasised that this case concerned both Convention No. 151 and Convention No. 87, and raised the issue of public servants' freedom of association and collective bargaining. Convention No. 151 is meant to clarify and add to Convention No. 87, and not to replace it. The public servants' freedom of association and of collective bargaining still raises serious difficulties in this country.

Concerning the alleged necessity of the measures to be taken with respect to the GCHQ, they expressed their surprise, as did the Worker member of the United Kingdom, that the Government had waited until after 1984 to deal with events which occurred in 1979 and 1981. It was disturbing that the Government took such drastic measures as dismissals, since the ILO supervisory bodies had begun the examination of this case.

The Government had not used the possibility of recourse to the International Court of Justice, and refused to negotiate and to take into account the comments of the ILO supervisory bodies. It is worrying that a sort of internal association of GCHQ employees could be established, while the existence of a normal union was challenged. Should one conclude that this type of association is less dangerous than a traditional union for national security? Do public servants lose their patriotism when they organise?

The Workers' members noted with regret that the Government maintained its position and refused to negotiate; therefore, this is a very serious case. They hoped that this case had not reached the point of no return.

The Employers' members recalled that this case had already been examined by the present Committee twice - the first time in 1985 - and that the Government and the Worker members were still at odds. The Employers' members stated that they had no intention to act as arbiters. This case concerned a communications centre where employees have functions comparable to those of military personnel and the Government was not prepared to accept strikes which could have serious repercussions; this position seemed justified. The discussions and negotiations did not produce results and 17 employees refused to cancel membership in their union, as proposed by the Government; 13 of these 17 employees have been transferred or dismissed. This was a very special case which would not affect the United Kingdom economy, wholly or partly. This was a very specific case which would not happen again in other circumstances since its complexity was also due to the difficult distinction between public servants and military personnel, a difficulty which has legal repercussions.

In 1985, when the Committee of Experts first studied this case, it noted in its report that this question went beyond the scope of Convention No. 87 and that this was a very complex situation. The issue was the relationship between Conventions Nos. 87 and 151 and the Committee of Experts then considered it was not in a position to make a decision. In the meantime, the Experts modified their position. The reference made to the International Court of Justice was then legitimate, since under the Constitution the Court was the only body competent to decide on interpretation problems. The question was: who should refer the case to the International Court of Justice? Could a government simply write a letter to the Court? This would be too easy.

The strained relations between the Government and the unions explained that this problem could not be resolved yet and that there was no solution in sight. This case should be replaced within the context of the part of the observations made by the Committee of Experts which would not be discussed this year.

Even before the publication of the report of the Committee of Experts, the Employers' members heard the unions complain that the Government constantly interfered in collective bargaining and that it violated union rights. The issues which were raised now could be debated, and should be examined again by the Committee next year. The Employers' members hoped that the Committee of Experts would examine again these questions in the meantime.

The particularly difficult relations between the unions and the Government are an obstacle to a solution. The question as to whether this communications centre could be integrated with the armed forces was a very difficult question to resolve since it concerned national legislation but, from a theoretical point of view, that solution could be considered. However, the Employers' members would not state whether this solution was the best one.

In any event, in view of the differing points of view, it would be necessary to emphasise in the conclusions that what was at issue in this country was not the freedom of association, but the situation of workers in a given sector which raised serious difficulties. The question had no relation whatsoever to the national economy, nor did it have links with the freedom of association. It should be admitted that positions were sometimes irreconcilable during a certain period, especially when it concerned so unique a sector. The Employers' members recalled that some cases - too many of them - had been discussed for 20 years without any solution or progress. This case was fairly recent and had been discussed three times during a relatively short period. Right now, it seemed that no solution was in sight and the Committee had to note it with regret.

The Worker member from Sweden, speaking on behalf of the Workers' members of Denmark, Finland, Norway and Sweden stated that a well-functioning supervisory system was a basic prerequisite of the ILO, but that the supervision would be meaningless if the member States did not respect the views expressed by the supervisory bodies. The Committee of Experts and the present Committee could examine objectively, independently and impartially cases brought before them. Until recently, their views were considered as binding by the member States, until the International Court of Justice had made a final decision. If that principle was not maintained, the whole work of the ILO would be undermined. Generally, however, there was no problem concerning the interpretations given by the supervisory bodies as the member States usually agreed with the Committees, which was further proved by the fact that only one case had been brought before the International Court of Justice since the founding of the ILO. In the present case, in spite of the unanimous views expressed by the supervisory bodies, 13 employees of the GCHQ had been dismissed because of their refusal to give up membership in the union of their choice. The right to join a trade union or to work for a union is one of the basic human rights. Therefore, it was of the utmost importance that a leading member State of the ILO should not ignore the views of the two Committee unless it took steps to bring the case for a final decision by the International Court of Justice. Any other behaviour would undermine the position of the supervisory bodies and of the supervisory system as a whole. The speaker therefore urged the Government to renew negotiations with the trade unions in order to find a solution consistent with the requirements of the Convention. The only other alternative would be to bring the case before the International Court of Justice.

The Worker member from Poland stated that his organisation was very happy to reappear in the ILO after eight years of official absence, and expressed his appreciation that it had not been forgotten. The speaker stressed that the GCHQ employees had been trade union members in many cases for up to 40 years; there had been no problem for many years and their loyalty was never questioned. Despite the fact that two ILO supervisory bodies reached the same conclusions, and that the trade unions have shown great flexibility and readiness to reach an agreement, the Government regrettably seemed to have rejected the possibility of a negotiated settlement. The credibility of the ILO, from which the Solidarity trade union benefited so much, would be put at risk if its supervisory bodies did not adopt a consistent approach. After so many years of discussion in this Committee concerning the present case, it was necessary, to retain the credibility of the Committee, to strongly draw world-wide attention to the gravity this case represented for workers in the United Kingdom. The GCHQ case is one of principle, the principle of freedom of association and human dignity.

The Employer member of Sweden, commenting on the report of the Committee of Experts, emphasised that he did not suggest that the Experts were not impartial or independent, but he questioned their expertise. The Committee of Experts had forgotten the basic principles governing the interpretation of treaties between States, as could be seen in the increasing number of overinterpretations in the reports of the past few years; he cautioned against that trend. He referred in particular to the present case and expressed the hope that the Experts would reconsider their position in that respect. The GCHQ establishment should be classified in the category of armed forces or police, and only the International Court of Justice could give an authoritative interpretation of the Convention. There were two ways to accomplish this: either the Conference or a majority of the Governing Body could ask for an opinion, or a government other than the United Kingdom or a worker delegate could make a constitutional complaint. The Governing Body could then establish a Commission of Inquiry whose conclusions could be appealed to the International Court of Justice by the Government. This course has now been open for five years and has not been used. Therefore, this Committee should not deal with this case any more, and the workers, if they so wish, could go to the Court by presenting a constitutional complaint.

The Worker member of the Federal Republic of Germany stated that what was most frightening was the fact that the Government assumed that trade union members were or could be a threat to the national security of the country. This reminded one of the hostile attitude towards the entire workers' movement which existed at the end of the last century. Members of the GCHQ had their own economic and social interests and, like all other employees, they needed the freedom to organise in unions and they had the right to bargain collectively. The Government ignored the findings, considerations, suggestions and demands of the ILO supervisory bodies. This was really a serious case because it was undermining the authority of the supervisory procedures. Meaningful dialogue did not mean one side who speaks and the other who does not listen. The present Committee cannot be satisfied if countries simply ignore its conclusions, because this would threaten its authority.

The Worker member of the Netherlands stated that he was really concerned about the possible consequences of this case for the ILO supervisory system, especially in view of the final comments of the Employers' members. The key sentence in the Government's declaration was, "we understand how the Committee of Experts came to its conclusions but we came to different conclusions and we should be allowed to do it". Back in 1978 there was a debate in this Committee between the Government representatives of the United Kingdom and of the USSR on this very point. The USSR representative had then been defending the point the British Government is now making, and the British representative had then submitted that that position would undermine the whole ILO supervisory machinery if this Committee would accept it. In cases where there were differences of opinion for 20 years, this Committee always showed its concern by expressing its views in a special paragraph. The key question here was: should the present Committee accept the Committee of Experts' views on this case, which included their views expressed in several reports in previous years. In the past two years the present Committee by and large always accepted the views of the Committee of Experts. Consequently the question was: did the Committee of Experts change their interpretation on this Convention, and in this very case this year? That was not so.

The Worker member of the United States commented on the Government representative's statement that it would serve no useful purpose to enter into any further negotiations with the unions involved; this statement greatly troubled him because it was slamming the door shut on any possible solution in consultation with the union, notwithstanding the fact that the latter was willing to reconsider the no-strike agreement sought by the Government. The legal complexities of this case were such that the final arbiter in this matter could only be the International Court of Justice. The speaker stated he would not quarrel with the Government's statement that the British courts had held that somehow there should be a fusion between Conventions Nos. 151 and 87; however, he doubted very seriously that the British courts at the same time indicated that there should be no further resort to resolution or possible compromise on the issue of the no-strike clause in an agreement between the Government and the trade unions. The Government representative never indicated a departure from the normal course of negotiation, reconsideration and re-negotiation if necessary, to resolve a very important problem. On the contrary, he seemed to take the position that the Government had always firmly supported these fundamental principles. Consequently, the present Committee should be preoccupied by such an adamant refusal to re-enter into any negotiations despite the union's indication of its willingness to negotiate on the very issue which is the root cause of the Government's concern in this case.

The Employer member of the United States replied to the comments made earlier by the Worker member of the Netherlands; this appeared to be a case of a "rush to judgement", whereas in fact this case was certainly recent. He further stated that this appeared to be a question of form over substance, since the functions of the GCHQ employees seemed to be inherently military. If these employees had been labelled "military" in terms of their functions, there probably would have been no problem; the fact that they were not so labelled expressly seemed to make a great difference to the Committee of Experts. The speaker also stated that there were really two questions here. Firstly, as mentioned by the Employers' members, on the basis of the 1985 observations of the Committee of Experts, there seemed to be an evolution and changing of the findings on the part of that Committee. Secondly, as was pointed out by the Employer member of Sweden, there was also the question of whether or not the Committee of Experts had in fact over-interpreted or misread this particular Convention. These questions were very different from the nature of the debates that took place in the late 1970s and early 1980s, which were really dealing with questions of application and whether there should be differences in application based on the nature of the political, social and economic views of particular governments.

The Worker member of the Netherlands replied to the previous speaker on two points. Firstly, he clarified that what he said before was that, if the present Committee on a certain case accepted over a number of years the views expressed by the Committee of Experts, the only reason to disagree now could be that the Committee of Experts had now changed their interpretation. Secondly, the speaker explained the criticism he had put forward during his intervention on the Dutch case; he made it clear that he criticised the fact that during a number of years the Dutch trade unions had asked for an interpretation by the Committee of Experts which did not come for a couple of years.

The Government representative stated he would make sure that the points made would be reported to his Government. He clarified some of his previous comments in reply to the Worker member of the United Kingdom, emphasising, first, that whilst the United Kingdom had a common law based system and not a system of law based on positive rights, in reality and in practice, public servants in the United Kingdom have greater freedom of association than in most other countries. Second, this was not a general case on freedom of association but a very specific case, concerning an establishment which was vital to national defence. Third, the trade union representatives had now suggested, after four years, the possibility of a no-strike agreement; to the speakers knowledge, this had not been mentioned to his Government. Fourthly, the British Government has absolutely never impugned the loyalty either of employees at GCHQ or of the trade unions. However, for reasons of national bargaining across the public service, the national trade unions had used the GCHQ employees as part of a national bargaining strategy. This may have been a legitimate action but it did undermine the credibility of the trade unions in the particular and unique situation of that establishment; this was worrying and troublesome. The speaker stressed again that this was not a general freedom of association situation, but a very unique case due to the special nature of GCHQ; the Government's action in this case was not an anti-union measure, but one taken solely in the interests of national security. In the meeting of the Governing Body which recently took place the new Worker member on the Committee of Freedom of Association pointed out that it was important to make a distinction between what he called "bureaucratic idiocies" and what he termed "monstrous abuses of human rights". The Government did not believe it breached Convention No. 87, but if the present Committee were to find otherwise, the speaker hoped that if fault there was, it lay in the former category. The Workers' members had referred in their comments to special conclusions on this matter; the speaker hoped that this Committee would think very clearly and carefully before agreeing to this. To adopt that type of conclusion for matters that were not fundamental human rights issues would be to undermine the force of a sanctioning policy that the ILO has at its disposal. This Committee should not have double standards, and the universality of the ILO standards should be maintained.

The Workers' members proposed that these conclusions be mentioned in a special paragraph of the present Committee's general report since, although this was an important case which had been discussed on many occasions, the Government had not initiated negotiations with the trade unions concerned and the situation had not progressed.

The Employers' members pointed out that the legislative questions had not been discussed by this Committee and should not be included in the conclusions; if reference to these aspects were retained in the conclusions, the dissenting position of the Employers should be recorded. The proposal that the conclusions be included in a special paragraph was not acceptable: a complex legal question was at issue, which could be finally resolved only by the International Court of Justice; the issue was, who would take the initiative of an appeal to the Court. It followed that the situation was not clear as had sometimes been alleged. The case was not typical. Fortunately, the existence and extent of freedom of association in the country was not at stake; it was merely an individual borderline case which warranted full attention as such and which was being discussed for the third time now. In many other cases, a legal trade union monopoly, depriving all workers of freedom of association, had been debated for over 20 years. There was a question of equality of treatment, so that a special paragraph could not be accepted in the present case.

The Workers' members requested that a nominal vote be held to decide whether this case should be mentioned in a special paragraph.

The Government member of Czechoslovakia, speaking on behalf of a certain number of socialist countries, stated that they were not in favour of solving problems by a vote, but preferred that a solution be sought by other means. However, if a vote was to take place, the complexity of the problems at issue required time for reflection; therefore, they asked that the vote be delayed until a later time, in the hope that the Workers' and Employers' members could reach an agreement in the meantime.

The Government member of the United States wondered whether this case should be pushed so far. She considered that this was not an issue by whether the United Kingdom was a developed or developing country, and that if there had been an egregious violation of freedom of association there would be no question that a special paragraph was merited. Indeed, this was a very special case. She was concerned that a vote on this matter would damage the good will and consensus which were so important to the work of the Committee.

The Government member of France requested that, were a vote to be held, members should have the possibility of explaining their vote.

After the results of the vote had been announced, various Government members went on the explain the reasons for their vote.

A Government member of Sweden, speaking on behalf of the five Nordic countries, stated that the Governments of those countries had agreed with the conclusions adopted by the present Committee in this case. but had voted against a special paragraph because they wished to maintain the particular significance of the special paragraphs, which in their opinion should continue to be reserved for the most serious cases.

A Government member of the Federal Republic of Germany explained his Government's "No" vote, noting that the question voted upon was not whether the United Kingdom had violated the Convention; rather the vote had been about the fundamental principles governing the work of the present Committee: dialogue and consensus. Taking a vote was contrary to consensus and did not contribute to furthering a dialogue, which was sought in this case, in particular by the Workers.

A Government member of Portugal stated that he voted "No" because of the doubts which surrounded an interpretation of the situation. His Government thought this case should be subject to further legal analysis; the present Committee should not adopt a decision which, by its exceptional nature, would have to be seen as final. In addition, in other cases where doubts of interpretation existed, decisions different from the one proposed had been taken; this had to stand in the way of mentioning the United Kingdom in a special paragraph of the report.

A Government member of Australia had disfavoured the inclusion of this case in a special paragraph for the following reasons. The present Committee traditionally reached a consensus view; the approach taken in this case was cause for concern. Having noted the discussion with interest and the special and unique circumstances of this case, his Government none the less thought there might be a technical breach of the Convention. The United Kingdom Government had not moved to address the issues raised by the Committee of Experts and apparently saw no need so to move. The Australian Government supported the Committee of Experts' conclusions. It encouraged the United Kingdom Government to undertake further negotiations with the relevant trade unions to seek, in a manner consistent with the requirements of the Convention, resolution of the issue. However, special paragraphs had previously been used only in respect of gross breaches of human rights, circumstances which did not apply in this case. At this stage, a special paragraph would be a disproportionate response.

The Workers' members regretted the result of the vote; they were also saddened by not having been able to reach a consensus with the Employers' members, as was usually the case. They wished to make it clear that special paragraphs did not represent a judgement; they were merely an indication of which cases had been considered worth highlighting and on which governments and employers' and workers' organisations were invited to try to overcome the difficulties. They believed in the independence, impartiality and objectivity of the Committee of Experts and in the great importance of the Committee on Freedom of Association. They stated that standards and the supervisory machinery existed for both industrialised countries and developing countries; problems in the industrialised countries assumed different proportions from the ones they assumed in poor countries, in so far as there was non-compliance or serious difficulties were encountered, particularly in relation to basic standards, such as freedom of association, they believed that attention should be drawn to this problem as well. The Workers' members explained the reasons why they had proposed the use of a special paragraph: firstly, because they thought all the possibilities of dialogue and conciliation had not been exhausted within the country; secondly, because of the dismissal of 13 workers for faithfulness to their trade union during the course of the procedure before the Committee on Freedom of Association; and thirdly, in order to urge and encourage the British Government not to close the door but rather to reopen negotiations. They expressed their surprise at the narrow margin in the voting results and their satisfaction with the total solidarity shown by the Workers' members, which they considered to be important and historical.

A Government member of Ecuador explained that he had, with much regret, voted in favour of mentioning this case in a special paragraph in the hope that this would spur other countries to reflect on the tendency towards singling out situations in small countries which were sometimes the result of pressure from political interests outside the country. He expressed satisfaction that a democratic vote in connection with the present case had shown that principles of equity were not always violated.

A Government member of the United States declared it was a shame that the situation had become so polarised. Her Government questioned whether this matter should have come to a vote at all. She hoped that the present Committee could now move forward in a positive and constructive manner, on the basis of good will and consensus. A vote had been cast against a special paragraph because its use should be reserved for serious, longstanding and pervasive violations of a ratified Convention; the United Kingdom case did not meet that test. The United States Government firmly believed in the uniform, universal application of ILO standards, regardless of a country's political orientation or level of economic development. In the view of her Government, this had not been a vote for or against a double standard; it had been a vote for or against lowering the standard that the present Committee applies in deciding whether to mention a case in a special paragraph. She declared that her Government was not ready to change the criterion determining whether or not a case should be registered in a special paragraph. Her Government thought that another case discussed recently in the present Committee had also not merited a special paragraph, because there had appeared to be signs that the government in question was taking steps towards the fuller application of a ratified Convention.

A Government member of France stated that he had voted "No", essentially because of the jurisprudence of the Committee. The long-standing work practices of the present Committee allowed stable and objective positions to be taken, whether the country was large or small, industrialised or developing. According to tradition, a special paragraph could be used when try in question met two criteria; firstly, that it had been under examination for a long time without any progress being made secondly, that it was a very serious case of violation of human rights. Each case of a special paragraph had to be put into perspective, that is, related to and compared with others. It had not seemed to him that the present case met the two criteria mentioned above. Finally, he expressed the hope that a return would be made to consensus, which was the usual working method of the Committee.

A Government member of Uruguay explaining his "Yes" vote stated that it had been based on the objective facts described in the Committee of Experts' report, which had said that workers were dismissed while the Committee on Freedom of Association was examining the case. In this sense, his vote constituted support for the ILO supervisory system. He indicated that the same criteria should be applied to other similar and even more serious cases dealt with by the present Committee.

The Government member of the Netherlands stated that a "No" vote had been cast because the Government considered the present Committee should follow its usual procedure of reaching decisions by consensus.

Explaining the reasons for its abstention on the vote, the Government member of Czechoslovakia referred to the earlier expression of his Government's view that such issues should be decided by consensus not by vote. Further, it was his Government's view that sanctions should be applied only in cases of gross and repeated violations of the respective Conventions and where consensus had been reached. His Government had not been fully convinced of the arguments put forward in this case and wondered whether a real issue of principle was at stake, or rather a matter of disagreement between the Government of the United Kingdom and the Committee of Experts over an interpretation of one specific issue covered by Convention No. 87.

A Government member of Bulgaria explained his delegation's abstention in the vote on the basis of his Government's opinion that only dialogue should be promoted in the present Committee and that decisions should be reached only by consensus. A vote was not a dialogue. No matter its outcome, it did not serve the cause of co-operation. He stressed that to achieve better results, emphasis should be placed on dialogue.

A Government member of Turkey wished to explain the "No" vote of his Government. He recalled the mandate of the present Conference Committee, which should not be exceeded; the striking of a balance between North or South, East or West, was up to other United Nations bodies having responsibility in that regard. While his Government had great respect for the Committee of Experts and its report, it did not take the conclusions therein as word of law. The present Committee was supposed to feel free to make a full assessment of all the aspects in the report, without any prejudice in regard to any consideration on a specific country.

A Government member of the United Kingdom noted that his Government had voted "No" because it felt that registration of this case as a special paragraph would be disproportionate and that it would undermine the force of ILO sanctions. This was not a North-South question. It was a question of the norms governing the practice of the present Committee. The Workers' members had, however, demanded a vote and the issue had been put to the democratic process which had now produced its results. His Government thanked the present Committee for its decision, particularly as an indication of the return to a sense of proportion. The Government hoped that the Workers' members would take good note of the outcome.