Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 234, Juin 1984

1. 343. The Trades Union Congress (TUC) presented a complaint of violations of trade union rights against the United Kingdom in a communication dated 14 February 1984. The International Confederation of Free Trade Unions (ICFTU) and the Public Services International (PSI) formally associated themselves with this complaint in letters dated, respectively, 16 and 24 February 1984. The Government supplied its observations in a communication dated 19 April 1984.
2. 344. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 345. In its communication of 14 February 1984, the TUC alleges that the United Kingdom has violated Articles 2, 3, 4 and 5 of Convention No. 87 by denying almost 7,000 staff employed at the Cheltenham Government Communications Headquarters (GCHQ) the right to belong to a trade union. According to the TUC, on 25 January 1984 the Foreign and Commonwealth Secretary announced in the House of Commons that staff employed at the GCHQ on civilian contracts, a clear majority of whom were members of trade unions, were to be deprived of their right to belong to a trade union. Each member of the staff received a circular and an option form (copies supplied by the complainant) which asked them either to agree to surrender their right to belong to a trade union and receive a cash payment of 1,000 in return, or to apply for a transfer to another unspecified job in the civil service. Staff who refused to complete the option form or who, after deciding to leave GCHQ, refused to accept an alternative posting will be dismissed and will not have a right to redundancy payments. The TUC states that the staff were also told that they would be allowed to join a staff association which would be "approved for the time being" by the Director of GCHQ.
2. 346. The TUC stresses that the government action was taken unilaterally without any consultation with the unions represented among the staff at Cheltenham GCHQ or with any other trade union organisation.
3. 347. Referring to the Government's justification of its action, namely the special nature of the work at GCHQ which is important to national security, the TUC explains that the unions accept the Government's responsibility to determine what are essential intelligence services. According to the TUC the unions involved, with TUC support, have made it quite clear to the Government that they are entirely willing to discuss and settle the problems raised by the Prime Minister concerning the complete protection of national security within GCHQ, namely, information on classified matters being disclosed by exercise of the right of access by staff to industrial tribunals, the possibility of disruption of work as a result of an industrial dispute, the involvement of full-time officials in departmental negotiations and wider issues, and the possibility of a conflict of loyalty. As regards the first problem area, the complainant points out that industrial tribunals can meet in camera and the unions involved have stated that they are ready to consider whether the Civil Service Appeal Board whose members could be vetted for security and whose hearings could be in camera, should provide an agreed alternative to the industrial tribunals, or whether the three Security Advisers, who currently consider cases where security clearance is refused, should serve in camera. As regards the second problem area, the trade unions involved have told the Prime Minister that they would accept arrangements to ensure the continuous operation of essential intelligence services in GCHQ all day, every day. The guarantee to maintain essential intelligence services would need to be matched by machinery to resolve individual and collective grievances and the' unions recognise that the arrangements will be incorporated in the conditions of employment of those concerned while they are employed in providing essential intelligence services. On the third point, the unions involved have explained to the Prime Minister that full-time officials of trade unions involved in negotiations on behalf of the staff at Cheltenham were never given access to security information and were always accompanied by security staff on site. The unions have said that they are ready to enshrine these arrangements in a formal agreement. The TUC states that there has been no conflict of loyalty and that the unions involved are ready to reach an agreement which puts this beyond doubt. During discussions, the trade unions had asked the Prime Minister to identify any cases of conflict of loyalty, and they made it clear that they wanted to discuss sensible arrangements to ensure that conflicts of loyalty would not occur in the future. The unions have told the Government that they will consider any amendments or extra provisions required to maintain the essential intelligence services at GCHQ, but at the same time preserve the right of staff to join a trade union of their choice.
4. 348. Noting that the United Kingdom has already ratified Convention No. 151, the TUC states that it does not believe that it was ever the intention of that Convention that civilian groups of employees working with sensitive material should run the risk of being denied the fundamental right to belong to a trade union through unilateral government action. In addition it points out that Convention No. 151 applies to public employees only to the extent that more favourable provisions in other Conventions are not applicable to them; since Article 2 of Convention No. 87 is clearer and more favourable than Convention No. 151 the TUC bases its complaint solely on Convention No. 87. The TUC points out that it would make no sense if a government which had freely accepted clear obligations by ratifying Convention No. 87 should be able to shed or limit those obligations by ratifying another more detailed Convention many years later.
5. 349. Lastly, the complainant refers to the general outrage amongst British people in general at the Government's action in this case. It stresses that the Council of Civil Service Unions (CCSU) and the TUC remain ready to discuss with the Government ways of solving any of the problems concerning employment and trade union activity at GCHQ. It expresses the hope that the Government will withdraw this measure.

B. The Government's reply

1. 350. In its communication of 19 April 1984, the Government firstly emphasises that before deciding to introduce the measures affecting Government Communications Headquarters (GCHQ) staff which are the subject of the TUC complaint, it gave very full and careful consideration to its obligations under all the relevant International Labour Conventions and concluded that the measures it proposed did not infringe those obligations in any way.
2. 351. The Government explains that the functions of the GCHQ are carried out under the ministerial responsibility of the Secretary of State for Foreign and Commonwealth Affairs and are to ensure the security of the United Kingdom's military and official communications and to provide signals intelligence in accordance with the requirements laid down upon it by the Government in support of the Government's defence and foreign policies. According to the Government, the GCHQ is one of the national security and intelligence agencies upon which the United Kingdom's national security depends.
   • The staff of GCHQ are public servants and their work is highly confidential. The Government states that any interruption in the flow of intelligence from GCHQ could deprive the Government of information which could be vital to national security. To fulfil its purpose, GCHQ needs to operate continually for 24 hours a day, every day of the year.
3. 352. According to the Government, between February 1979 and April 1981 the continuity of GCHQ operations was disrupted by industrial action seven times, over 10,000 work-days being lost. The greater part of this disruption, including the worst, was carried out in pursuit of disputes over pay which concerned all public servants employed by the Government. The trade unions concerned announced publicly that GCHQ had been selected as a target for industrial action specifically because it was an agency vital to national security and because the disruption of its work would have international repercussions and in this connection the Government quotes from a trade union "campaign report" issued in 1981, which stated that "our ultimate success depends upon the extent to which ... defence readiness is hampered ... by this and further action".
4. 353. Against this background, the Government decided that two measures were necessary to protect the confidentiality of GCHQ and ensure its uninterrupted operation. Both these measures had already applied under successive governments to other agencies whose operations and activities are primarily and similarly concerned with security and intelligence. First, the Foreign and Commonwealth Secretary, on 25 January 1984, signed certificates under section 121(4) of the Employment Protection Act, 1975, and section 138(4) of the Employment Protection (Consolidation) Act, 1978, excepting GCHQ staff from the application of the relevant provisions of these statutes. Secondly, new conditions of service for GCHQ staff were introduced by Order in Council under which they would not be permitted to belong to a trade union other than a departmental staff association approved by the Director of GCHQ. The Government states that, in recognition of the withdrawal of certain statutory rights, GCHQ staff who chose to remain at GCHQ under the revised conditions of service are receiving an ex gratia payment. GCHQ staff who wish to retain their trade union membership and their rights under the Employment Protection Acts have been invited to seek a transfer to another part of the civil service.
5. 354. Subsequent to the announcement of these measures on 25 January, discussions took place between the Government and the Civil Service Unions on proposals which the unions put forward, without prejudice, as a suggested alternative means of meeting the Government's objectives. However, the Government had to conclude that the action which it had taken provided the only effective guarantee of fulfilling its responsibilities for national security.
6. 355. The Government points out that, as the TUC acknowledges in its complaint, it is for the Government to determine what are essential intelligence services. It maintains that it is also for the Government to decide whether those of its employees who fall within the category of those "whose duties are of a highly confidential nature" for whom the "right to organise" is, under Convention 151, "to be determined by national laws or regulations" should be subject to limitations in respect of trade union membership. Since the work carried out at GCHQ by public servants is essential to national security and is of a highly confidential nature, the Government decided to introduce such limitations.
7. 356. The Government contends that Convention No. 87 cannot be viewed in isolation from Convention No. 151 or Convention No. 98. It claims that it is clear from the preparatory documents leading up to the adoption of Convention No. 151 that the application of Convention No. 87 in relation to the public service was a matter of considerable dispute and divergence of practice and that the need was accepted for some instrument more specifically concerned with the public service. Convention No. 151 (which overtook the generality of Convention No. 87) deals specifically with those standards to be followed in the case of public servants and contains the latest and most definitive statement of these standards; that it was concluded with the terms of the two earlier Conventions in mind is clear from the reference to those Conventions in the Preamble to the Convention. The Government relies on Article 1.2 of Convention No. 151 (it is left to national laws or regulations to determine the extent to which the guarantees provided for in the Convention are to apply to employees in the public service whose duties are of a highly confidential nature) as justification for its claim that the provisions of the Convention do not apply to staff employed at GCHQ.
8. 357. The Government does not agree with the TUC's argument that the provisions of Convention No. 87 are more favourable provisions which, by virtue of Article 1.] of Convention No. 151, will continue to apply because such an argument would effectively make nonsense of the existence of a separate Convention No. 151, directed deliberately to the special circumstances of the public services, and in particular the power contained in Article 1.2 of Convention No. 151. More specifically, the Government maintains that the rights described in Convention No. 151 - in particular, in Article 4 (employees shall not be subject to conditions that they shall not join or shall relinquish membership of a public employees' organisation and the prohibition on dismissal or other action against an employee by reason of membership of such an organisation or participation in its normal activities) and in Article 5 (independence of public employees' organisations and their protection from acts of interference or control) - give practical expression to the general statement of rights in Convention No. 87. Therefore it is the Government's view that the provisions of Conventions Nos. 87 and 151 are interwoven to such an extent that the power in Article 1.2 of Convention No. 151 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 and that it is the clearly-stated intention of Convention No. 151 that the extent of the protections set out in its Article 4 should be for determination by governments in the case of employees whose duties are of a highly confidential nature.
9. 358. In conclusion, the Government confirms its continued adherence to its long-established policy of strictly respecting its obligations under all ILO Conventions that it has ratified and its commitment to the principles enshrined in these Conventions.

C. The Committee's conclusions

1. 359. The Committee notes that the present case concerns measures taken by the Government in January 1984, the effect of which was to cause a certain category of public servants to relinquish their membership of the trade union to which they belonged. The Government maintains that the measures taken by it were justified in the' interests of national security and that, in view of the provisions of Convention No. 151, from whose protection workers employed in positions of a highly confidential nature may be excluded, there was no breach of ILO Conventions relating to freedom of association.
2. 360. The facts in this case are not in dispute and there is no basic contradiction between the versions provided by the complainant and the Government in their respective submissions. What is in dispute is the right of the Government, which has ratified all of the freedom of association Conventions referred to in this case (Nos. 87, 98 and 151), to deprive a particular category of public servants of their basic right to form or join a trade union of their choice or, in° the circumstances of the present case, to maintain their membership of the union of their choice.
3. 361. Essentially, what the Government argues is that, by its terms, Convention No. 151, which applies specifically to public. servants, enables a government to exclude a particular category of; public servants (viz. those in highly confidential positions) from the basic right of association that is guaranteed to them under Convention' No. 87.
4. 362. The Committee is unable to accept this argument. By its terms, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) guarantees the basic right to form and join organisations of their own choosing to all workers "without! distinction whatsoever", including all public servants, whatever the nature of their functions, the only limitations permitted by the• Convention concerning members of the armed forces and the police.
   • Both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations have always taken the view that the exclusion of public servants from this fundamental right contravenes the Convention. Not only must all workers be granted the right to organise but, by virtue of Article 11, ratifying States must take all necessary and appropriate measures to ensure that workers may freely exercise that right. It follows that, instead of taking measures to enable the workers concerned freely to exercise the right to organise, the Government, by exercising powers" granted to it as government under the Employment Protection Act and then imposing restrictive terms of employment, has itself taken the action which has resulted in their loss of this right. This action therefore contravenes Articles 2 and 11 of Convention No. 87.
5. 363. Furthermore, the Committee cannot accept that Convention No. 151, which was intended to complement the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) by laying down certain provisions concerning, in particular, protection against anti-union discrimination and the determination of terms and conditions of employment as these relate to the public service in general, in any way contradicts or dilutes the basic rights of association guaranteed to all workers by virtue of Convention No. 87.
6. 364. The Committee acknowledges that the special nature of the functions of public servants engaged in the administration of the State and, in particular, the fact that their terms and conditions of employment may be determined otherwise than by a free collective bargaining process, was recognised by Convention No. 98, and that Convention No. 151, which was intended to make more specific provision for that category of public servants who were excluded from the scope of Convention No. 98, recognised that certain categories of public servants (including those in highly confidential positions) may be excluded from the more general provisions guaranteeing to public. servants protection against acts of anti-union discrimination or ensuring the existence of methods of participation in the determination of their conditions of employment. In the opinion of the Committee, however, the exclusion of certain categories of workers in Conventions Nos. 98 and 151 cannot be interpreted as affecting or minimising in any way the basic right to organise of all workers guaranteed by Convention No. 87. Nothing in either Convention No. 98 or Convention No. 151 indicates an intention to limit the scope of Convention No. 87. On the contrary, both the terms of these Conventions and the preparatory work leading to the adoption of Convention No. 98 show a contrary intention.
7. 365. The Committee would, in addition, draw attention to the terms of Article 6 of Convention No. 98 which provide that "this Convention does not deal with the protection of public servants engaged in the administration of the State nor shall it be construed as prejudicing their rights or status in any way". Unlike Article 5 of the Convention (dealing with the armed forces and the police) Article 6, in providing that the Convention shall not be construed as in any way prejudicing the rights or the status of public servants, at the same time removed the possible conflict between the Convention and Convention No. 87 and expressly preserved the rights of public' servants, including those guaranteed in Convention No. 87. The argument of the UK Government that the effect of the provisions of Convention No. 87 is limited if reference is made to Article 6 of Convention No. 98 conflicts with the express terms of that Article.
8. 366. Likewise, Article 1, paragraph 1 of Convention No. 151, provides that the Convention applies to all persons employed by the public authorities "to the extent that more favourable provisions in other international labour Conventions are not applicable to them' If, therefore, Convention No. 98 left intact the rights granted to public servants by Convention No. 87, it follows that Convention No. 151 has not impaired them either.
9. 367. In addition, the Committee cannot accept that the possibility contained in the conditions of service announced on 25 January 1984 of joining "a departmental staff association" to be approved by the Director of the institution concerned, satisfies the condition that, in order to ensure full conformity with Convention No. 87, governments must ensure that workers should be able to establish and join organisations of their own choosing without previous authorisation (Article 2).
10. 368. The Committee notes with regret that not only did the Government proceed to take measures which, in depriving workers of their trade union membership, were incompatible with Convention No. 87, but it did so without any consultations with the workers themselves or with their organisations. The Government states, in this connection, that its action was considered necessary in order to put an end to the possibility of participation in strikes by the workers concerned.
11. 369. The Committee would point out that while public servants are entitled to benefit from the provisions of Convention No. 87 this does not mean that they may not be subjected to special rules as regards the settlement of disputes. The Committee considers that if appropriate consultations or negotiations undertaken in good faith with the relevant organisations had taken place, the stated objective of the Government could have been achieved in an atmosphere in which harmonious industrial relations could have been preserved and in which the compatibility of government measures with ratified international labour standards would not have been brought into question.
12. 370. In all these circumstances, the Committee considers that steps should be taken by the Government to pursue negotiations with the Civil Service Unions involved and a genuine effort made to reach an agreement which would ensure not only the Government's wish as regards the continuity of operations at GCHQ but also its full application of the freedom of association Conventions which it has ratified. The Committee expresses the hope that the Government will reconsider the matter in the light of the foregoing considerations and keep it informed of any further steps that may be taken in regard to the questions raised in this case.