Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative indicated that his Government fully supported Convention No. 29, and took the Committee of Experts' observations very seriously. The issue of work in prisons was discussed at length by the Committee last year when it considered individual cases under Convention No. 29. A key point that emerged at those discussions was the complexity surrounding the interpretation of some aspects of the Convention, drafted in the 1930s, in a contemporary setting, particularly in the context of public and private sector partnerships. Another important point was that the concept of work for prisoners had changed. Whereas it might previously have had a punitive element, work for prisoners in the United Kingdom and other countries was now, like education and training, considered to be a crucial factor in their rehabilitation and re-entry into society. Indeed, under the United Nations Minimum Rules, prisoners were required to work as part of their rehabilitation and preparation for release. In recognition of the complex issues surrounding this debate, a number of delegates who spoke at last year's meeting of the Committee on the Application of Standards felt strongly that a new General Survey on forced labour was needed before the issue could be evaluated and given the full consideration it merited.

His Government had noted the observations made by the Committee of Experts in respect of work performed by prisoners in either prisons or workshops, either of which had been contracted out. His Government understood the Committee of Experts' concerns, but believed that it had in place adequate measures to ensure that prisoners who worked in these situations were not exploited and that they did not engage in forced or compulsory labour. The objectives of the United Kingdom Prison Service were to protect the public by holding those committed by the courts in a safe, decent and healthy environment; and to reduce crime by providing constructive regimes which addressed offending behaviour, improved educational and work skills and promoted law-abiding behaviour in custody and after release. Prisoners were encouraged to acquire work habits, attitudes and skills, together with exposure to modern industrial practice, which would better equip them to return to society as law-abiding citizens. Prison regimes, whether run by the public sector or, in a few cases, contracted out to the private sector, provided similar programmes to address offending behaviour, as well as education, training and employment opportunities for prisoners. The provision of a number of different types of work was intended to enable many prisoners to have, often for the first time, modern work experience prior to their return to society. The value of work programmes offering relevant and realistic training was that they prepared prisoners for employment on release; there were well-established links between unemployment and crime. A study had shown that prisoners who had been involved in work programmes had a lower arrest rate than a matched group who had not. Research had also shown that vocational training courses applied to a targeted group of prisoners could lead to a reduction in reconviction rates.

Finding suitable work for prisoners was difficult. It needed to correspond to individuals with a range of abilities. The growing experience of prison services was that the best way to find suitable work for prisoners was to contract with private companies, and the United Kingdom ensured that suitable safeguards were in place to stop the exploitation of prisoners. These arrangements had practical benefits. They increased the amount and range of work for prisoners and provided a more realistic work experience for prisoners which contributed to a sense of achievement and self-esteem and helped break down barriers against the employment of ex-offenders.

A small number of United Kingdom prisons were managed under contract with private sector companies. These prisons -- nine out of a total of 137 -- were required to conform to the same policies and to meet the same standards as publicly managed prisons. They were subject to the same regimes of independent inspection. They were required to meet the same standards and conditions of work as those for prisoners in public sector prisons. Prisoners working in either contracted-out prisons or workshops did so under the same conditions as those working in public sector prisons. Contractually managed prisons were obliged to comply with all legal health and safety requirements.

No prisoner -- whether in a publicly run, or privatized prison or workshop -- was placed at the disposal of private company employers. While private sector companies might supervise the work on a day-to-day basis, the prisoner remained under the ultimate care and control of Prison Service officials. Prisoners received pay for the work they did. Wages were paid to prisoners by the prison and not by the private company providing the work.

The Government considered that its present policies for the employment of prisoners conformed with the requirements of the Convention and were in the best interests of prisoners. His Government believed that the work or service was carried out under the supervision and control of a public authority and that the persons concerned were not hired out or placed at the disposal of private individuals, companies or associations. In his Government's view, there was no alternative to its present policies which would not severely reduce the volume and quality of work available to prisoners, to their direct disadvantage and to the wider detriment of its objectives of rehabilitation. The Government continued to believe that the provision of suitable work opportunities for prisoners, including by private companies under the supervision of the Prison Service, was in line with the general aims and objectives of the Convention and other good practices, such as the European Prison Rules and United Nations Minimum Standards.

In his Government's view, it was clear from last year's discussions before the Conference Committee that the principle of prison labour needed to be given further and wider consideration. The speaker was pleased to note that the Committee of Experts had recognized that this was a very important issue which merited fresh attention. His Government intended to address the matter in its next report in the light of responses to last year's general observations. As the United Kingdom had made clear in the general discussion, it intended to participate fully in those discussions. In the meantime, his Government looked forward to continuing to discuss the issue with its social partners. The United Kingdom would also continue to supply information to the Committee of Experts through its next report on the application of Convention No. 29 and would respond in full to the direct request.

The Employer members noted, with regard to the Committee of Experts' comments concerning the United Kingdom, that the provisions in respect of overseas domestic workers had been amended and that there had been improvement in this area. However, the question of its practical application remained and the Employer members asked the Government to supply information in its next report on the impact of the new legislation. With regard to the issue of prisoners working for private companies, they noted that the Committee of Experts did not see a problem with the Government's practice of having prisoners work on pre-release schemes where the voluntary consent of the person concerned was obtained and there were further guarantees and safeguards covering the essential elements of a labour relationship to remove the employment from the scope of Article 2(c).

Turning to paragraph 4 of the Committee of Experts' comments regarding prisoners in outside employment, the Employer members noted that this situation did not exist when the Convention was adopted in 1930. Therefore, the Committee of Experts may not have had this situation in mind. It might be addressed under Article 2(c) of the Convention, which provided that a person convicted by a court could be required to work under two conditions. First, the work or service must be carried out under the supervision and control of the public authority and, secondly, the prisoner could not be hired to or placed at the disposal of private individuals, companies or associations. If this case was to be addressed under the provision mentioned, these two conditions must be met. In the case before the Committee, the conclusion could be drawn that the Convention was not violated as long as the prisoner remained under the supervision and control of a public authority and was not placed under the complete authority of private companies. They noted, however, that the Committee of Experts' interpretation followed the strict wording of the Convention in this regard. The Employer members then raised the question of the conditions under which prisoners could work and disagreed that prisoners working for private companies should be subject to the same employment conditions prevailing on the free labour market, pointing out that the Convention was silent on this point with regard to outside prison labour. However, it was well established that prisoners were not as productive as other workers and the risk of harm or damage was higher. Because of these conditions, prisons did not receive much work from outside employers and therefore went out to seek out employment for prisoners in private enterprises. The Employer members believed that it was important for prisoners to perform meaningful work which would allow them to be reintegrated into society and help prevent recidivism. Such work helped the prisoner to acquire employment-related skills as well as the opportunity to receive an income. In conclusion, they indicated that a broader approach to this issue should be taken by the Committee. Noting that the Convention was drafted before the issue of private prison labour arose, they asserted that it was necessary to look at the benefit to society as well as to the prisoner. The public authorities must retain supervision and control over the prisoners and determine the conditions under which a prisoner would carry out work for a private company. While the Conference Committee had discussed this issue for some time, the dialogue should be continued and more attention should be paid to this growing practice.

The Worker members noted that greater attention had been devoted by the Committee of Experts and the Conference Committee in recent years to the issue of prisoners working for private companies, and a dramatic increase in the practice had been noted. The Committee of Experts had again commented on Convention No. 29 with regard to the United Kingdom. However, it had also commented on the use of private prison labour in Cameroon. Therefore, there was an emerging jurisprudence on private prison labour which would be strengthened next year when the Committee of Experts would again address the issue of prisoners being "hired to or placed at the disposal of private individuals, companies or associations". Moreover, next year's Global Report would focus on Conventions Nos. 29 and 105, which might provide yet another opportunity to focus on the exploitation of private prison labour. The Worker members welcomed the increased attention being devoted to this growing global practice and considered the Committee of Experts' efforts to clarify the provisions of the Convention as an example of the ability of the supervisory machinery to apply a Convention adopted over 70 years ago to new developments and modern circumstances.

The Worker members recalled that private prison labour was clearly prohibited under Article 2(2)(c) of the Convention. However, in an attempt to accommodate what was increasingly seen as a positive prisoner rehabilitation practice, namely the voluntary acceptance of work outside a prison by prisoners scheduled for release to ease their transition back into society, the Committee of Experts had interpreted the Convention to provide for circumstances under which such pre-release schemes would be consistent with Article 2(2)(c). While the Committee of Experts was regularly accused of over-interpretation, the Worker members felt that a number of governments and the Employer members would like the Committee of Experts to provide even more interpretation to accommodate this growing practice. In this regard, the Committee of Experts had consistently stated that work for private companies could be compatible with Article 2(2)(c) only where prisoners worked in conditions approximating a free employment relationship. This necessarily required the voluntary consent of the prisoner as well as further guarantees and safeguards covering the essential elements of an employment relationship. The Worker members expected the Committee of Experts to reaffirm these basic principles in its General Survey next year. They emphasized the importance of having the Conference Committee review the situation in both developed and developing countries to reinforce one of the ILO's fundamental principles, that the Conventions, particularly the core labour standards, applied equally to all countries that had ratified them. They cautioned that there must never be any question of a double standard in the application of standards for the supervisory machinery to work effectively. Noting that the Committee of Experts had addressed the situation of the United Kingdom for the past three years, the Worker members focused on two areas of concern: domestic workers from abroad and prisoners working for private companies. Regarding the former, they noted the Government's comments in the Committee of Experts' report and before the Conference Committee concerning the implementation of new rules adopted in 1998 protecting domestic workers. Noting that overseas domestic workers were especially vulnerable to abuse and exploitation, they requested the Government to continue to provide updated information to the Committee of Experts on the effectiveness of these new rules.

Turning to the issue of prisoners working for private companies, they noted that the Committee of Experts' comments addressed outside employment as well as contracted-out prisons and prison industries. The Committee of Experts' comments indicated that prisoners employed outside prisons were subject to income tax and national insurance contributions from the wages they received. The Government had stated that it was prison service policy that such arrangements did not give an unfair competitive advantage to enterprises employing prisoners and must not treat prisoners less favourably than other workers in comparable employment. Therefore, it should be easy for the Government to include prisoners under the national minimum wage laws as requested by the Committee of Experts. With regard to contracted-out prisons and prison industries, the Committee of Experts was absolutely clear in paragraph 8 of its comments that, even if a prisoner remained under the supervision and control of the public authority, this did not dispense with the requirements of Article 2(2)(c). The prisoner must freely consent to the work and the work must be performed under normal conditions regarding wage levels, social security and other safeguards. The Worker members noted the Government's statement in paragraph 12 of the Committee of Experts' comments that most of the work undertaken in prisons involving external contractors "is labour-intensive and if done externally could not be done economically. In the absence of prisons taking on the work, it is likely that the processes would be automated or taken abroad". This situation was not unique to the United Kingdom. They requested more information on the Government's views that private prison labour was the only way for the country's economy to produce needed goods and services that the market failed to provide and that the exploitation of private prison labour was a way for developed countries to compete with the lower labour costs in developing countries.

In conclusion, the Worker members emphasized that they were not opposed to effective rehabilitation of prisoners, and favoured giving them greater work, education and training opportunities. However, they found it objectionable that, in the United Kingdom and a growing number of countries worldwide, private companies could exploit prison labour by legally employing prisoners at wages far below the minimum wage. Apparently, the motive for such exploitation was not rehabilitation but profit. This practice was in clear violation of the Convention and could not be tolerated. The Committee of Experts had made it clear that the growing practice of prisoners working for private companies could in fact be consistent with the provisions of the Convention. Therefore, the Worker members called for the Government to take all the necessary steps to establish the circumstances which would allow prisoners to work in conditions approximating a free employment relationship, as required by the Convention. Ending the exemption relieving private companies of the obligation to pay the minimum wage to prisoners would be a good beginning. However, on a more fundamental level, the Worker members requested the Government to create a legal framework for the establishment of a direct contractual employment relationship between the company and the prisoner.

The Employer member of the United Kingdom supported two points made by the Government representative. First, the current policies relating to private prisons were in conformity with the Convention. Second, there were no realistic alternatives to the current policies which would not severely reduce the volume and quality of the work available to prisoners. She also supported the continued ability of private companies to contract with public authorities for the management of prisons. However, this did not mean that British employers supported the exploitation of prison workers. They fully supported the aim of this fundamental Convention. It was clear from Article 2(2)(c) of the Convention that, where a prisoner was required to work, the Government needed to show that the work was: (1) carried out under the supervision and control of a public authority; and (2) that the person was not hired to or placed at the disposal of private individuals, companies or associations. There was no violation of the Convention because the public authority vetted work given to prisoners and therefore had ultimate control and supervision over the provision of work under the contract, although the private company had a day-to-day supervisory function. Moreover, the contractual arrangements were not comparable to what would normally be regarded as a hiring arrangement because, if they were comparable, then the private company would be paying the public authority as providers of the prisoners' services. This was clearly not the case, since the roles here were reversed. In addition, prisoners were not at the disposal of private companies because the companies did not have absolute discretion over the type of work that they could request the prisoner to do. Companies could only ask prisoners to perform tasks that they could be required to do in a public prison, such as rehabilitative work and duties within the prison. Private companies running private prisons were therefore simply agents of the public authority and were limited by the rules set by that authority.

If the United Kingdom were in violation simply because there was no direct supervision and control, then the Government was left with only one option -- to show that the work done in prisons was not in fact forced or compulsory pursuant to Article 2(1). She pointed out that the Committee of Experts had previously held that private companies could require prisoners to carry out work under the Prison Rules under the terms of their contract with the public authority. It had also found that work done by a prisoner for a private individual -- whether under a contracting-out scheme or work for a private enterprise brought into a public prison -- could only be considered to be done voluntarily if the relationship with the private company were in conditions approximating free employment. The Committee of Experts had therefore requested that the Government implement legislation requiring private companies to pay the national minimum wage, execute an employment contract with the prisoner and provide other employment-related benefits. She submitted that this was not the only conclusion that could be supported under the provisions of the Convention. She considered that there was no need for a prisoner to have a normal employment relationship with the private company to ensure that the prisoner had given true and genuine consent. Article 2(1) only required the person to have offered himself voluntarily and without threat of a penalty. She pointed out that while there might be many reasons to volunteer, this did not detract from the fact of voluntary consent. The objectives of a voluntary relationship could be achieved by introducing a condition preventing a private company from requiring prisoners to do the work and from imposing a penalty if they did not work. This would remove any work done within private prisons from the definition of forced or compulsory labour. While this would not be a realistic option given the United Nations Minimum Rules, the speaker invited the Committee of Experts to explore alternative approaches if it remained convinced that the United Kingdom was not complying with the Convention. If a contract of employment between the prisoner and the private company were deemed necessary, a range of employment protection legislation would apply. She did not consider this to be appropriate since prisoners were disenfranchised and it was unrealistic to compare their circumstances to those of persons in free society. She hoped that she had identified areas for further discussion before definitive conclusions were reached regarding the issue of contracted-out prisons and welcomed the general discussion on this subject to be held next year following publication of the Global Report.

The Worker member of the United Kingdom first turned to the part of the Committee of Experts' comments regarding domestic workers from abroad, noting that some welcome progress had been made, but that room for improvement remained. He described a meeting between Kalayaan, the organization representing overseas domestic workers, and the Immigration Minister of the Home Office to address problems facing domestic workers previously admitted to the country who had left their original employer due to abuse or exploitation. The Government had made certain arrangements to improve the situation of these workers and the Home Office had conformed to the points agreed upon. However, Kalayaan had recently expressed concern to the Immigration Minister regarding three cases refused because of their submission following the deadline for regularization applications, cases that the Home Office had agreed to consider on their merits. He hoped that those cases as well as the issue of post-deadline submissions were being reconsidered. However, the underlying problem, which still appeared to be unresolved, was that the de facto employment relationship under which the domestic worker was admitted to the United Kingdom was not recognized under British law, so that normal legal employment protections did not attach. He considered that the unequivocal recognition of this relationship would represent a significant step forward.

Turning to the issue of prison labour, he noted that the Worker members had already reacquainted the Committee with the basic issues in the case. He stressed that the requirements of the Convention as set forth in Article 2(2)(c) were as clear in 1930 as they were today. In so far as circumstances relevant to the operation of prisons in ratifying States had changed, he considered that the Committee of Experts had responded correctly and had established clear jurisprudence. He noted that the Worker members had referred to the case of the GCHQ and recalled the persistent refusal of the previous Government of the United Kingdom to accept the authority of the Committee of Experts, or indeed of the Conference Committee. He referred to information supplied by his trade union to the Committee of Experts in connection with this case, which consisted of first-hand research undertaken last summer. The results of the research were then compared with the Convention's requirements and the Committee of Experts' findings. The research was carried out following a meeting in December 1998, when TUC officials and the General Secretary of the Prison Officers' Association met with the then Prisons Minister to discuss the divergence between law and practice in the United Kingdom and the requirements of the Convention. The Minister had invited them to visit both privately run prisons and state-run prisons to talk to prisoners and prison managers about work for private companies. Last August, the speaker had visited three prisons: a state-run remand prison for young women; a state-run open prison for men; and a contracted-out (privately run) local male prison. He spoke to prisoners in all three prisons and in two of them, including the privately run prison, he spoke to prisoners working for private companies which had contracted work to the prisons. The governor of the open prison supplied valuable information on pre-release schemes and work done inside the prison for private companies. The additional evidence submitted to the Committee of Experts was the result of those visits. He noted that, in light of those reports, the Committee of Experts had repeated its concerns and he hoped that the Government was now quite clear about the divergences between its law and practice and its obligations under the Convention. Unfortunately, the research had found little evidence that current practice met those criteria established by the Committee of Experts regarding conditions approximating to a free employment relationship. During the visits mentioned, he spoke with prisoners working in the prison for private companies from outside and to prisoners in "normal prison work", such as laundry, gardening and kitchen work in the privately run prison. With the two exceptions of the pre-release schemes at the state-run Hewell Grange open prison (which met some criteria required by the Committee of Experts such as minimum wage, social security payments and health and safety training) and of the work performed in state-run prisons (which was in most cases supervised by prison staff), none of the other types of work met any of the criteria. In the other cases, particularly in the privately run prison, the contractual relationship was only between the prison and the outside company; there was no contract between the prisoner and the company. Moreover, the prisoners were under the supervision of employees of the outside company or of the United Kingdom Detention Services (UKDS), the private company which ran the prisons, not of state employees.

The speaker stressed that the issue of whether the prisoner had given genuine and free consent to work should be viewed in light of certain factors. First, while the prisoners he spoke with had expressed a preference to work and none objected to working for an outside company, he noted that rules requiring convicted prisoners to work were in force, including in contracted-out prisons, and a prisoner refusing to work would be put on report. Second, neither the minimum wage nor the rate for the job applied, either in work for outside companies or in normal prison work done for UKDS. No prisoner earned enough to meet the lower earnings level for social security contributions. Given these circumstances, he believed that this case was essentially about preventing exploitation of prisoners by private companies. He gave the example of work involving the refurbishment of small concrete mixers for plant-hire companies. The prison concerned had contracted to supply this service to the company concerned. The work was supervised by UKDS custody officers, an instructor and an employee of the plant-hire company. The management told the speaker that the prisoners were being paid a maximum of £25 for a 35-hour week, while prisoners told him that they received a maximum of £15 per week. He pointed out that the minimum wage in the United Kingdom last year was £126 for a 35-hour week. Accordingly, these prisoners were receiving between 20 and 12 per cent of the legal minimum wage in force outside prisons. The management of the privately run prison had indicated that this work could not be done anywhere else on the free labour market in the United Kingdom because to pay even the legal minimum wage would render the operation unprofitable. In this context, the speaker stressed that, certainly, none of the members of the Committee would accept the arguments of those exploiting child labour that it was proper to pay children starvation wages because otherwise they would have no work, nor would they agree that employers should break the law and fail to pay legal minimum wages to adults. He noted that some processes might indeed be unprofitable if normal wages were paid and explained that these processes were generally referred to as "uneconomic". However, in this case, the work -- although he acknowledged that the prisoners derived some satisfaction from it -- was unequivocally exploitative. If work could not be performed for proper wages, then perhaps it had no place in the economy.

Turning to the publicly run open prison, he noted that a variety of work was performed in pre-release schemes, while a very small number of prisoners were working inside the prison for private outside companies. In some cases, despite the good intentions of the prison governor, prisoners engaged in a concrete and concrete-mixing training course were working for an outside private company that had a contract with the prison and were receiving £8-10 for a 35-hour working week -- only 8 per cent of the minimum wage. While none of these prisoners had expressed the view that they were the victims of undue coercion, he believed that there was no genuine free consent in their situation and that they were clearly victims of exploitation. With regard to "normal prison work" being performed inside the privately run prison, he noted that this was work done for and under the supervision of a private company. He recalled that this was why the Committee of Experts had held that the ban on work by prisoners for private companies should apply, a fortiori, to all work performed in private prisons and pointed out that convicted prisoners in the United Kingdom could in fact be required to work whether in a state-run or privately run prison.

In conclusion, he believed that constructive and "decent" work was an essential element in the rehabilitation of prisoners. At Hewell Grange, pre-release schemes were in fact approximating the requirements of the Committee of Experts and he considered such schemes useful to facilitate the reintegration of prisoners into society and the labour market. However, he stressed that, when prisoners were paying their debt to society, society should be represented by the State, not by the shareholders of private companies. However humane the treatment of working prisoners, they would be potential and often actual victims of exploitation as long as the criteria established by the Committee of Experts were not applied. The speaker agreed with the other Worker members that the obligations arising from ratification of the Convention were the same for the United Kingdom as for any other ratifying State. While he acknowledged that the situation in the United Kingdom did not involve physical mistreatment of prisoners by private companies such as beatings or torture and that some of the work in fact contributed to the prisoners' sense of self-esteem, he nevertheless reminded the Conference Committee that convicted prisoners in the United Kingdom did not have a choice as to whether or not they would work and that, in addition, the requirements of the Committee of Experts were not being met. Weakening the jurisprudence to permit the exploitation of prisoners by private companies could have truly devastating effects in countries where the rule of law was not universally and adequately enforced. He stressed that international law was a seamless tissue and that, if one picked at the stitches, it would fall apart. In this regard, he thanked the Committee of Experts for maintaining its stance that the obligations arising out of ratifying Convention No. 29 were the same for all ratifying States. He requested that the Conference Committee make clear to the United Kingdom its obligations under the Convention. Stressing his belief that the problems were not insurmountable but required political will, he welcomed the prospect of future discussions and hoped that the Government would uphold its obligations and demonstrate its commitment to the rule of international law, particularly in regard to fundamental human rights.

The Government member of Australia made it clear that Australia strongly supported Convention No. 29 as one of the ILO's core standards. He recalled that Australia had been called before the Committee last year with regard to a matter similar to the one for which the United Kingdom Government found itself before the Committee this year. At that time, the Australian Government had made substantive submissions on the matter, which could be found in the record of the 87th Session of the Conference. The thrust of those submissions was that it was clear from the preparatory reports from 1929 that the situation of the private administration of prisons had not been considered by the Conference in 1929. Rather, the focus of the Convention was the farming out of prisoners to private employers. The Australian Government had also noted at that time that although Convention No. 29 was a self-contained instrument, it was applied against the background of developing international law. He stated that in the supervision of compliance with the Convention, attention should be paid to other human rights instruments dealing with the same issues in the interest of cohesive international jurisprudence. In this regard, he drew the Committee's attention to recent international instruments, including Article 8 of the International Covenant on Civil and Political Rights and the United Nations Minimum Rules for the Treatment of Prisoners. He further recalled that in its conclusions on the Australian case, the Committee had encouraged all governments to reply to the Committee of Experts' general observations on the question of private prison labour. He stated that it was clear that the application of Convention No. 29 was uncertain in modern times, and that Australia was currently reviewing this issue. In this respect, he supported the view expressed by the Government representative raising questions as to the appropriateness of discussing this issue at the Committee at this point in time. This case also had more important and pressing implications for the Committee and for the ILO in general. First, it illustrated the need to ensure that international labour standards and their supervision remained appropriate for a modern economy. He stated that it should not be surprising that the way prison labour was addressed in 1929 was no longer appropriate today. Secondly, it highlighted the need for a process to review and upgrade any shortcomings in the standards system which were identified in such a manner. The existing process might not be sufficiently expeditious in the consideration of such issues as they were identified. Thirdly, this case raised questions about the appropriateness of the current supervisory machinery, including the practice of publishing country-specific observations when the Committee of Experts itself had expressed uncertainty and intended to examine the matter in a general discussion. He stated that the Australian Government had maintained the view for some time that there was a pressing need to reform the standards system of the ILO, and that this case reinforced that position.

The Worker member of Singapore recalled that according to the report of the Committee of Experts, persons leased under the Prison Rules, 1999, were exempted from the Minimum Wage Act, 1998. In relation to this, the Government representative had stated that its prison policy was to ensure that such arrangements would not give an unfair competitive advantage to those who employed prisoners and that prisoners would not be treated less favourably than other workers in comparable employment. Nevertheless, there was nothing in the report to indicate how this prison service policy was put into practice, and whether in fact prisoners were paid comparable wages and treated fairly. Furthermore, she noted that such prisoners were not free agents with the ability to look for any employment in the labour market. Given the above, it was difficult to understand how such prisoners could be considered to be employed within a free labour relationship. Turning to the question of consent, she recalled that in its comments on the Cameroon case with regard to Convention No. 29, the Committee of Experts had noted that an important element for compliance with Article 2(2)(c) of the Convention was formal consent by persons concerned. She asked whether consent had been secured in the United Kingdom or whether no such consent was required in this particular case. If so, she asked why there was an apparent discrepancy between the conclusions regarding these two cases. In her view, the employment of prisoners under the Prisoner Rules, 1999, was in contravention of Convention No. 29, and she recalled that the objective of the Convention was to prevent the exaction of labour of any person under compulsion. Finally, she noted that there was an important difference between providing skills and training to prisoners and providing cheap labour to industries.

The Government member of Germany noted that prison labour was a particularly sensitive topic in relation to forced labour. On one hand, prisoners were as a rule obliged to work in almost all countries and thus required special protection against exploitation. In this respect, he recalled Article XX(e) of the General Agreement on Tariffs and Trade which provided for trade measures against prison-made goods. On the other hand, he noted that it was recognized in most countries that work was perhaps the most important factor in ensuring the successful reintegration of prisoners into society. Such work could not simply be repetitive and routine work, as was usually found in prisons, but rather work which corresponded to the capabilities of prisoners and to the conditions of the real world of work. Increasingly, such work was found with private employers. He noted that one could not speak of full equality in the relationship between prisoners and other workers since the employer could not choose the individual workers but rather had to accept the entire contingency of prison workers from a particular institution. The question of whether prison labour, as it had developed over many years, still fitted in the discussion of Convention No. 29 had caused the Committee of Experts to request, in its general comments on the Convention last year, governments to respond to a number of questions on the issue. He recalled that the comments of the Committee of Experts on this matter were expected to be discussed at the International Labour Conference in 2001. In this respect, he indicated his understanding for the concerns of the Government representative about examining the particular case of the United Kingdom before the general discussion on this topic. Perhaps it was more appropriate not to draft conclusions on this case and to await the next report of the Committee of Experts, so as not to pre-empt their findings.

The Worker member of the Republic of Korea expressed his support for the comments made by the Worker member of the United Kingdom regarding the universality of international labour standards. He stressed that Convention No. 29 was a fundamental Convention and that there should be no restrictive or flexible interpretation of the standard to take into account the degree of industrial development of a particular country. He called on the Government of the United Kingdom to respect its obligations under the Convention.

The Government member of New Zealand stated that her Government fully supported Convention No. 29. However, she recalled that there would be a wider consideration of this issue in the context of the Global Report next year. She therefore doubted that a long discussion on prison labour with regard to the particular situation in the United Kingdom would be beneficial. She also noted that the Convention had been drafted in the 1930s, a time when private prisons had not existed. As a result the debate on the interpretation of the Convention in the context of the modern world was complex, as had been demonstrated in discussions on the matter in the Committee in recent years. She stated that in view of the uncertainty on how to interpret Article 2(2)(c) with respect to prison labour, further discussion was needed, and she indicated that the Government of New Zealand looked forward to participating in such a discussion following the presentation of the Global Report at the Conference next year.

The Government representative apologized for not mentioning domestic workers in his initial statement. He recalled that new rules had been introduced which allowed domestic workers to make an application to change employer or to apply to regularize their stay in the United Kingdom in cases of abuse or exploitation. Following a meeting between Kalayaan -- the organization representing such workers -- and the Government, special casework procedures had been introduced to clear the backlog of outstanding applications relating to the new rules. A significant number of cases had been cleared. He also pointed out that Kalayaan and other relevant organizations had been given direct contact to the Government department responsible for domestic worker issues. With regard to prison labour, he expressed his Government's intention to provide full information for the next report and to discuss the case with the social partners. However, he stressed that the issue of private prison labour went beyond the specific case of the United Kingdom and that it should first be discussed in a general context.

The Worker members expressed strong concerns with regard to suggestions made that the Committee's examination of this case should be suspended until the matter had been discussed in the general report or until the publication of the Global Report. They emphasized that the Declaration on Fundamental Principles and Rights at Work and its Follow-up was not a substitute for the regular supervisory machinery of the ILO. The discussion of the Committee should focus on the United Kingdom and encourage the Government to bring its law and practice into conformity with the Convention.

The Employer members, in reaction to a statement by the Worker members that the Employers' position appeared to be calling for an interpretation of a Convention, recalled that their position had always been strictly against the interpretation of Conventions beyond their wording. In this regard, they recalled that the issue of private prisons had not been known and had therefore not been relevant when the Convention had been adopted in 1930. Consequently, the subordination of this matter under the provisions of the Convention was only possible by interpreting Article 2(2)(c) beyond its strict wording. The Employers' position was simply that labour in private prisons could not be discussed in the context of the Convention without engaging in an interpretation of the instrument. Turning to the issue of payment of wages for work performed by prisoners for private companies, they noted that different terms, such as "payment of normal wages", "payment of the appropriate rate for the job" and "minimum payment" had been used in the comments of the Committee of Experts. They recalled that traditional prison work had always been paid at a low rate. Moreover, the Convention contained no provisions in this regard. According to their understanding, the Committee of Experts was of the opinion that payment should be higher than the minimum wage, but lower than wages in the labour market. They further noted that this view was reflected in "comments" of the Committee of Experts, which were not identical to jurisprudence. The Employer members also reiterated their position that employment contracts should be between prisons and enterprises, and not individual prison workers and enterprises. They noted that only in an employment relationship between a prison and an enterprise would the state supervision of the prisoner be guaranteed; this would not be possible in a private employment contract. The relinquishing of a prisoner from his or her legal status under criminal law into a normal employment situation for a few hours a day would be legally difficult. Furthermore, they expressed their agreement with the statement made by the Government member of Germany to the effect that giving prisoners the opportunity to perform meaningful work was an important element in the successful reintegration of prisoners into society. They agreed that there were important differences between normal and prison labour and that each needed to be treated differently with regard to their respective legal consequences. Finally, they recalled that the Committee had a mandate to draw its own conclusions, which might vary considerably from the views of the Committee of Experts. In this respect, the different views which had been expressed on the issue during the discussion should be reflected in the Committee's conclusions.

The Committee noted the information provided by the Government representative, as well as the discussion that ensued in the Committee. It also noted that a detailed report had been submitted for examination by the Committee of Experts. The Committee asked the Government to provide further information on the Committee of Experts' observation concerning domestic workers from abroad. As concerned prisoners working for private companies, the Committee took note of the different points of view expressed within the Committee. The Committee hoped that the Government would continue to examine whether prisoners released on a daily basis to work in the free labour market should be covered by normal minimum wage legislation. As regarded prisons and prison industries "contracted out" to a private company, the Committee noted that the Committee of Experts would be examining this issue in detail at its next session. It hoped that the Government would continue to examine measures in law and in practice to ensure that, when prisoners were required to work, this would be carried out in conformity with the Convention.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. The Committee takes note of the comprehensive information supplied by the Government on measures taken to combat trafficking in persons for the purpose of sexual and labour exploitation. It has also noted a communication dated 29 August 2008, whereby the International Trade Union Confederation (ITUC) submitted comments concerning human trafficking, in connection with the application of the Convention by the United Kingdom. In that communication, the ITUC expressed the view that, despite many positive initiatives undertaken by the Government, there were still some important gaps in its counter-trafficking policy which needed to be addressed. Thus, the ITUC considered that the Government urgently needed to carry out detailed research into trafficking for labour exploitation in the United Kingdom. In addition, the ITUC expressed the view that the identification, referral, protection and support measures were still inadequate, particularly as regards trafficking for labour exploitation. The ITUC also expressed concern about the situation of migrant domestic workers, in connection with the proposed amendments to current immigration rules.

The Committee notes with interest that the United Kingdom has ratified the Council of Europe Convention on Trafficking in Human Beings and has set up a multi-agency Home Office-led task force to monitor its implementation. It also notes that section 31 of the new Borders Act 2007 has amended existing provisions regarding trafficking for exploitation offences to extend their coverage.

The Committee notes with interest the information on the implementation of the UK Action Plan on Tackling Human Trafficking (which sets out the Government’s strategy in the key areas, such as prevention, protection of victims, investigation, law enforcement and prosecution), including the information on the activities of the UK Human Trafficking Centre, which performs coordinating functions and has responsibility for a number of important actions set out in the Plan. In particular, it notes the establishment in 2009 of a National Referral Mechanism, which provides improved procedures for early identification, referral and support by local agencies and should also yield better data on victims.

As regards measures to combat labour trafficking, the Government indicates that a multi-agency pilot project on trafficking for forced labour was led between May and September 2008 to improve knowledge of this less well-known type of trafficking and to test victim identification and support arrangements. In November 2008, a multi-agency “Operation Ruby” was launched to target labour trafficking; it led to a number of arrests and over 60 potential victims were screened as part of a victim identification process.

As regards law enforcement and prosecution, the Committee notes that the UK Human Trafficking Centre provides a central point for the development of law enforcement expertise in relation to all forms of trafficking and plays a key role in a strategic partnership and collaborative working between all UK law enforcement agencies. It also notes the Government’s indication that, up to February 2009, there have been 100 convictions for trafficking and three for conspiracy to trafficking for the purpose of sexual exploitation and five convictions for labour trafficking. The Committee further notes statistical information on the results of “Operation Pentameter 2” (the largest ever police-led enforcement campaign to combat trafficking for sexual exploitation), which were announced in July 2008; according to this information, 167 victims were recovered and 528 arrests were made in the course of the operation.

While noting this information with interest, the Committee hopes that the Government will provide further information on the legislative developments with a view to strengthening measures to combat trafficking, such as, for example, the proposed measures in the Border, Citizenship and Immigration Bill and Crime Bills, that are currently before Parliament, according to the Government’s report. The Committee also requests the Government to provide information on the practical working of the National Referral Mechanism, in relation both to labour trafficking and trafficking for sexual exploitation, as well as, more generally, on any action taken with a view to increasing efficiency of victim identification and victim protection measures, referring also to the relevant points raised in the abovementioned communication by the ITUC. Please also continue to provide information on the law enforcement measures, particularly as regards the efficiency of prosecution and punishment of the offenders.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1, paragraph 1, and 2, paragraphs 1 and 2(c), of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. In comments it has been making for a number of years concerning the privatization of prisons and work of prisoners for private companies in the United Kingdom, the Committee has pointed out that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in the sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers (including privatized prisons and prison workshops), even under public supervision and control. The Committee recalled that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, “that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. Both these conditions are necessary for compliance with the Convention: if either of the two conditions is not observed, the situation is not excluded from the scope of the Convention, and compulsory labour exacted from convicted persons under these circumstances is thus prohibited. The Committee asked the Government to take the necessary measures in order to ensure that, with regard to contracted-out prisons and prison industries, any work by prisoners for private companies be performed under the conditions of a freely consented upon labour relationship, without the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free labour relationship.

The Committee notes with regret from the Government’s report that there has been no change in the Government’s position and in national law and practice with regard to the work of prisoners for private entities. The Government reiterates its view that its approach to this issue is in line with the aims of the Convention. It states that both public and private sector prisons and workshops in the United Kingdom are subject to rigorous independent inspections, both domestically and internationally, and that the United Kingdom continues to have in place a robust set of rules and regulations to ensure that prison labour is not abused.

While noting these statements, the Committee points out once again that the privatization of prison labour transcends the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. Consequently, it may be held compatible with the Convention only where it does not involve compulsory labour. Thus, in order to comply with the Convention, the work of prisoners for private companies requires the freely given consent of the persons concerned. The Committee has considered that, in the context of a captive labour force having no alternative access to the free labour market, the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health (see paragraphs 59–60 and 114–120 of the Committee’s 2007 General Survey on the eradication of forced labour).

While noting the Government’s repeated suggestion to refer this matter for further consideration in conjunction with international labour practitioners, as well as the Government’s confirmed willingness to cooperate with the ILO on this matter, the Committee is of the opinion that, in spite of the express prohibition for prisoners to be hired to or placed at the disposal of private parties under the terms of the Convention, it is fully possible for ratifying States to apply the Convention when designing or implementing a system of privatized prison labour, once the abovementioned requirements are complied with. The Committee refers in this connection to paragraph 122 of its 2007 General Survey on the eradication of forced labour, where it observed that a certain number of countries have made progress towards full compliance with the Convention by taking measures, both in law and in practice, so that conditions of the private employment of prisoners progressively approach those of free workers.

The Committee therefore expresses the firm hope that measures will be taken to ensure that freely given and informed consent is required for the work of prisoners in privately operated prisons, as well as for all work of prisoners for private companies, both inside and outside prison premises, such “free” and “informed” consent being authenticated by the conditions of work approximating a free labour relationship, as regards wage levels (leaving room for deductions and attachments), social security and occupational safety and health. The Committee trusts that such measures will be taken both in law and in practice, in order to grant prisoners working in privately operated facilities and other prisoners working for private enterprises a legal status with rights and conditions of employment that are compatible with this basic human rights instrument, and that the Government will soon be in a position to report the progress made in this regard.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Domestic workers from abroad. Further to its earlier comments, the Committee has noted the detailed information concerning measures taken to reinforce protection of domestic workers coming from abroad, including the information on provisions concerning the immigration rules for private servants in diplomatic households and domestic workers in private households. It has also noted the Government’s indication in its 2005 report that the Immigration and Nationality Directorate has consulted extensively with Kalayaan, an NGO which campaigns for the rights of overseas domestic workers, with a view to ensuring that this category of worker is protected in the United Kingdom. The Committee hopes that the Government will continue to supply, in its future reports, information on further measures taken in this regard.

Women recruited abroad with false promises of work as nurses in the United Kingdom. In it earlier comments the Committee referred to the information contained in the report of the United Nations Working Group on Contemporary Forms of Slavery on its twenty-sixth session (doc. E/CN.4/Sub.2/2001/30), according to which an increasing number of women were recruited abroad with false promises of work as nurses in the United Kingdom; this category of worker was particularly vulnerable to exploitation, especially in a situation where their passports and work permits were confiscated. The Government indicated that, in February 2003, Work Permits (UK) set up an “intelligence” team, which was designed to ensure that any information received about abuse of the work permit arrangements or of overseas workers is rigorously investigated and lawfully acted upon.

The Committee has noted the Government’s indications in its 2005 report concerning the organization and practical working of the Work Permit teams. It has noted, in particular, that the Work Permit teams handle all allegations of abuse relating to work permits, received from various sources, and may conduct further detailed investigations, which in some cases led to prosecutions relating to facilitation, forgery, deception, etc. The Committee hopes that the Government will provide, in its future reports, further information on the measures taken in this area, in consultation with the employers’ and workers’ organizations concerned.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee has noted the information supplied by the Government in reply to its earlier comments. It has also noted a communication dated 24 October 2005 received from the Trades Union Congress (TUC), which contains the TUC’s response to the Government’s report, as well as a communication dated 29 August 2006, whereby the International Confederation of Free Trade Unions (ICFTU) (currently the International Trade Unions Confederation – ITUC) submitted comments on the application of the Convention by the United Kingdom. The Committee notes that these communications have been forwarded to the Government for any further comments it might wish to make and hopes that such comments will be supplied by the Government with its next report.

Article 1(1) and Article 2(1) and (2)(c) of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. In its earlier comments concerning the privatization of prisons and work of prisoners for private entities, the Committee pointed out that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in the sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers (including privatized prisons and prison workshops), even under public supervision and control. The Committee has previously asked the Government to take the necessary measures in order to ensure that, with regard to contracted-out prisons and prison industries, any work by prisoners for private companies be performed under the conditions of a freely consented upon labour relationship, without the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Government reiterates its view that its approach to the work of prisoners for private entities is in line with the aims of the Convention. It states that there is no real difference between supervisory arrangements for public and private prisons in the United Kingdom, where prison officers serving in private prisons have to be licensed by public authorities. The Government indicated previously that it could see no justification for requiring different systems of employment for public or private sector work in prisons, where adequate safeguards against abuse are in place. The Committee notes, however, that these views have again been rejected by the TUC in its response to the Government’s report contained in the communication referred to above. The TUC has also expressed the view that the supervisory arrangements in private prisons do not amount to the level of public supervision required by the Convention for such work: while prison officers employed by private companies have to be licensed by the public authorities, that does not amount to day-to-day supervision of prisoners’ work by the public authorities.

While having noted these views and comments, the Committee recalls that the privatization of prison labour transcends the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. By virtue of this provision, compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, “that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. Both these conditions are necessary for compliance with the Convention: if either of the two conditions is not observed, the situation is not excluded from the scope of the Convention, and compulsory labour exacted from convicted persons under these circumstances is thus prohibited. In other words, the two conditions apply cumulatively: i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not “hired to or placed at the disposal of private individuals, companies or associations”.

As the Committee pointed out in paragraph 106 of its General Survey of 2007 on the eradication of forced labour, the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons; therefore, it applies to all work organized by privately run prisons. Consequently, the privatization of prisons and/or of prison labour is only compatible with the Convention where it does not involve compulsory labour. Thus, in order to comply with the Convention, the work of prisoners for private companies requires the freely given consent of the persons concerned. The Committee has considered that, in the context of a captive labour force having no alternative access to the free labour market, the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed, such as the learning of new skills which could be deployed by prisoners when released, the offer of continuing work of the same type upon their release, or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills. The Committee has indicated that all of these factors should be taken as a whole in determining whether consent was freely given and informed; they also should be considered and assessed by the public authorities (see paragraphs 59–60 and 114–120 of the Committee’s General Survey of 2007 referred to above).

The Committee is of the opinion that, in spite of the express prohibition for prisoners to be hired to or placed at the disposal of private parties under the terms of the Convention, it is fully possible for countries to apply the Convention when designing or implementing a system of privatized prison labour, once the abovementioned requirements are observed. Noting the Government’s confirmed willingness to cooperate with the ILO on this matter, the Committee requests that the necessary measures be taken so as to ensure that free and informed consent is required for the work of prisoners in privately operated prisons in accordance with the factors outlined by the Committee as set out above.

In particular, the Committee requests the Government to provide, in its next report, information:

–           on the action taken to ensure that the informed written formal consent to perform work is obtained from such prisoners without the menace of any penalty;

–           on the action taken to ensure that such formal consent is authenticated by the existence of objective and measurable factors such as the prisoners performing work in conditions approximating a free labour relationship, together with other advantages such as learning of new skills which could be deployed when released; the offer of continuing work of the same type upon release; or the opportunity to work cooperatively and develop team skills, or other similar factors;

–           on the objective and measurable factors which are to be taken into account by public authorities in order to ensure that voluntariness of the consent is authenticated;

–           on the procedures undertaken by public authorities to regularly assess that such objective and measurable factors are in place in order to ensure that work performed by prisoners is voluntary.

Articles 1(1) and 2(1). Trafficking in persons for the purpose of exploitation. Referring to its earlier comments, the Committee has noted with interest the comprehensive information provided by the Government on measures taken to combat trafficking in persons for the purpose of sexual and labour exploitation. It has noted, in particular, the adoption of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, which criminalizes trafficking for labour exploitation, the Sexual Offences Act, 2003, which has reinforced provisions covering trafficking for the purposes of sexual exploitation, as well as the Gangmasters (Licensing) Act, 2004, and the Gangmasters (Licensing Authority) Regulations, 2005, which establish a system of licensing and registration of labour providers operating in the agriculture, shellfish-gathering and associated processing sectors. It has also noted with interest that the Government is participating in a project launched by the ILO Special Action Programme to combat Forced Labour (SAP-FL), which focuses on the forced labour dimensions of trafficking in selected European “source” and “destination” countries. Finally, the Committee has noted the establishment in 2004 of an interdepartmental Ministerial Group on Human Trafficking to ensure maximum effectiveness of the work undertaken by the Government to prevent, disrupt and prosecute trafficking and support victims, as well as a project called “the POPPY Scheme” aiming at the supporting of enforcement action, including prosecution and disruption of trafficking activity. Noting the Government’s indication in the report that the scheme is currently being evaluated, the Committee hopes that the Government will provide information on the results of its evaluation, particularly as regards the efficiency of prosecution, punishment of the offenders and victim protection measures.

In its previous comments, the Committee referred to the observations by the TUC concerning the situation of workers from abroad who fall victim to trafficking and find themselves in conditions which would amount to forced labour, in which the TUC expressed the view that a fundamental weakness in the existing law and regulations remains that workers who denounce these practices, and in particular if they leave that employment, may find themselves at great risk of deportation. In its latest communication referred to above, the TUC again expresses its concern with the fact that there is a great risk that deported trafficked workers may be delivered back into the hands of the criminal gangs that trafficked them in the first place and thus may be trafficked yet again. In the TUC’s view, an essential component of effective victim protection is the right of liberated trafficked workers to stay in the United Kingdom rather than be deported to their country of origin or the last country of residence.

The Committee previously noted the Government’s indication in its 2002 report that there was already provision for victims of trafficking to be granted exceptional leave to remain in the United Kingdom and that, in the Government’s view, these arrangements were best considered on a case-by-case basis, since any blanket grant of residency is open to abuse and may create a perverse incentive for traffickers to exploit more victims, by suggesting that they will be granted residency if they are trafficked. The Committee has noted the Government’s detailed explanations in its 2005 and 2007 reports concerning a grant of humanitarian protection, discretionary leave or leave outside the immigration rules, which, in the Government’s view, allows a fully flexible approach to be applied. While having noted these explanations, the Committee would appreciate it if the Government would provide information on how these arrangements work in practice, as well as information on any further measures taken or envisaged to protect the victims of trafficking. In particular, please provide information on the implementation of the UK Action Plan on Tackling Human Trafficking, as well as information on the activities of the UK Human Trafficking Centre referred to in the Government’s latest report.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

I. Women recruited abroad with false promises of work
as nurses in the United Kingdom

The Committee previously noted from paragraph 29 of the report of the United Nations Working Group on Contemporary Forms of Slavery on its twenty-sixth session (doc. E/CN.4/Sub.2/2001/30) that "an increasing number of women, especially from the Philippines and India, were recruited abroad with false promises of work as nurses [in the United Kingdom]. Once they had reached the country, their passports and work permits were confiscated. Without legal documents, they were more vulnerable to exploitation".

The Committee notes with interest the Government’s indication in its latest report that, in February 2003, Work Permits (UK) set up an "Intelligence" Team, which is designed to ensure that any information received about abuse of the work permit arrangements or of overseas workers is rigorously investigated and lawfully acted upon. Work Permits (UK) has also a new post-issue checking team (which began work in May 2003) to actively check a random selection of employers to ensure that the information provided at the application stage was factually accurate, and that relevant legislation is being observed. Besides, Work Permit (UK) has issued a leaflet for overseas nationals (to be widely available from August 2003), which provides details of where they can get further advice on their rights in the United Kingdom while undertaking approved employment.

The Committee also notes that, in its communication of 1 November 2002, the TUC expressed its regret about the fact that the Government had not pursued these matters in formal consultation with the trade unions representing nursing staff in Britain. It hopes that the Government will provide, in its next report, further information on the measures taken in this area, in consultation with the employers’ and workers’ organizations concerned and, in particular, on practical working of the Work Permits (UK) teams referred to above.

II. Trafficking in persons for the purpose of exploitation

The Committee has noted with interest the information on measures taken to prevent, suppress and punish trafficking in persons provided by the Government in reply to its 2000 general observation under the Convention. It has noted that the Nationality, Immigration and Asylum Act introduced a new offence of trafficking for the purpose of controlling someone in prostitution, with a maximum penalty of 14 years, which came into force in February 2003, and that more comprehensive measures covering trafficking for the purposes of sexual exploitation are included in the Sexual Offences Bill currently before Parliament. The Committee hopes that the Government will supply a copy of the Bill, as soon as it is adopted.

In the communication referred to above, the TUC refers to the situation of workers from abroad who fall victim to trafficking and may find themselves in conditions which would amount to forced labour, including confiscation of passports by employers, non-payment of wages, etc. In the TUC’s view, a fundamental weakness in the existing law and regulations remains that workers who denounce these practices, and in particular if they leave that employment, may find themselves at great risk of deportation.

As regards victim protection, the Committee has noted the Government’s indication in its 2002 report that there is already provision for victims of trafficking to be granted exceptional leave to remain in the United Kingdom. The Government is of the view that these arrangements are best considered on a case-by-case basis and that a blanket category of treatment is not the way forward, since any blanket grant of residency is open to abuse and may create a perverse incentive for traffickers to exploit more victims, by suggesting that they will be granted residency if they are trafficked. While noting these explanations, as well as the Government’s opinion that the current arrangements are more flexible and of greater practical benefit, the Committee would appreciate it if the Government would provide more detailed information on how these arrangements work in practice, giving examples of applications for residency accepted or refused and indicating the grounds for refusal.

In this connection, the Committee also notes with interest a recently published trafficking toolkit, which will serve as a best practice guide for immigration officers, police and other bodies dealing with trafficking, supplied by the Government with its latest report, as well as the Government’s indication that a pilot scheme for adult victims of trafficking for sexual exploitation was launched in March 2003, aiming at providing victims with safe housing, health care and legal advice. Noting also that the scheme will run initially on a pilot basis for nine months in order to assess the scale of demand for the services and to test its effectiveness, the Committee hopes that the Government will provide information on the outcome of this scheme and on further measures taken or envisaged to protect the victims of trafficking.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee has noted the information supplied by the Government in 2002 and 2003 in reply to its earlier comments. It has also noted a communication dated 1 November 2002 received from the Trades Union Congress (TUC), which contains the TUC’s response to the Government’s 2002 report, a copy of which was sent to the Government for any further comments it might wish to make.

I.  Domestic workers from abroad

1. In its previous observation, the Committee referred to the statement made by the United Kingdom Worker member at the Conference Committee in 2000 that the underlying problem, which still appeared to be unresolved, was that the de facto relationship under which the domestic worker was admitted to the United Kingdom was not recognized under British law, so that normal legal employment protections did not attach to the circumstances of their employment. The Committee has noted the Government’s statement in its 2002 report that, in the event of a dispute, an employment tribunal can make a ruling on employment status and in doing so will take into account all factors relevant to the case. However, according to the response by the TUC referred to above, only a handful of such cases have been considered by industrial tribunals in recent years, in which the workers concerned have been assisted by organizations such as Kalayaan and the TUC’s affiliated unions. The TUC takes the view that, in most cases, domestic workers will have no knowledge of British labour legislation, including their right to seek a ruling from an employment tribunal, and those workers whose de facto relationship with their employer is one of forced labour are least likely to be able to access such information or avail themselves of the protection offered by an industrial tribunal. A question that has been raised by the TUC is how the Government intends to ensure that all domestic workers are made aware of their rights and what strategies it intends to implement to ensure that those rights can be realised. The Committee hopes that the Government will comment on this statement by the TUC and supply information on the measures taken.

2. The Committee has noted with interest from the Government’s latest report that the new requirements, according to which domestic workers in private households are permitted to change employers regardless of their reasons for leaving their original employer, and that any such change in employer must be reported to the Immigration and Nationality Directorate, were formally incorporated into the Immigration Rules on 18 September 2002 under the title of "domestic workers in private households". The Committee hopes that the Government will supply a copy of these provisions, as well as the information on their application in practice.

II.  Prisoners working for private companies

3. Further to its earlier comments, the Committee has noted the Government’s statement in its 2002 report that the United Kingdom continues to have in place a robust set of rules and regulations to ensure that prison labour is not abused either commercially or otherwise, and that these rules apply with equal force to public and to private persons and workshops; the Government can see no justification for requiring different systems of employment for public or private sector work in prisons, where adequate safeguards against abuse are in place. The Committee has also noted that these views were rejected by the TUC in its response to the Government’s report contained in the communication referred to above. The TUC believes that practical work can and should be undertaken, through tripartite consultation, to explore how the existing requirements of the Convention should be met.

4. While having noted these views and comments, the Committee reiterates that the exception in Article 2(2)(c) of the Convention from the scope of the Convention provided for in this Article for compulsory prison labour, does not extend to work of prisoners hired to or placed at the disposal of private employers (including privatized prisons and prison workshops), even if under public supervision and control. The Committee again refers in this connection to the explanations given in paragraphs 127-143 of its general report to the International Labour Conference in 2001 and in points 5-11 of its 2001 general observation under the Convention, where it pointed out that it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

5. Having also noted the Government’s renewed suggestion in its 2002 report that this matter be remitted for further consideration in conjunction with penal practitioners, the Committee trusts that, with regard to contracted-out prisons and prison industries, the necessary measures will at last be taken to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship and that the Government will soon be in a position to indicate steps taken to this end.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes from paragraph 29 of the Report of the United Nations Working Group on Contemporary Forms of Slavery on its twenty-sixth session (doc. E/CN.4/Sub. 2/2001/30) that "an increasing number of women, especially from the Philippines and India, were recruited abroad with false promises of work as nurses [in the United Kingdom]. Once they had reached the country, their passports and work permits were confiscated. Without legal documents, they were more vulnerable to exploitation".

Referring to the general observation under the Convention in its report to the 89th Session of the International Labour Conference, 2001, the Committee hopes that in its reply to that observation, the Government will also deal with the matters raised by the UN Working Group in paragraph 29 of its report.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee has noted the information supplied by the Government in its report received in November 2000 and the comments on that report made by the Trades Union Congress (TUC) in a communication of 23 November 2000, a copy of which was sent to the Government for any further comments it might wish to make. The Committee has also noted the Government’s statements to the Conference Committee on the Application of Standards in 2000 and 2001, as well as the discussion on the observance of the Convention in the United Kingdom that took place in the Conference Committee in 2000.

I.  Domestic workers from abroad

1. In its previous observation, the Committee had noted that following concerns at reports of abuse of domestic workers accompanying their employers to the United Kingdom, a number of conditions under which they were admitted had been reviewed with the assistance of Kalayaan, the organization which represents overseas domestic workers, and a number of changes had been agreed with effect from 23 July 1998. Noting also that serious problems remained with the effective implementation of the new rules as set out in an observation by the TUC, the Committee hoped that these problems would be addressed in discussions that were to take place between the Government and Kalayaan, and that the Government would supply information on further measures taken. In its report, the Government indicated that, as a result of a November 1999 meeting between the Minister for Immigration and representatives of Kalayaan, special casework procedures were agreed and are in operation and a significant number of outstanding applications for the regularization of overseas domestic workers’ stay have been cleared. The Government also supplied information on three specific cases referred to by the United Kingdom Worker member at the Conference Committee, as well as copies of a form that employers must complete before obtaining entry clearance for a domestic worker and of an information leaflet provided to all domestic workers from overseas which includes details of employment rights and contact addresses. The Committee noted that these details centre on the terms and conditions of employment as set out by the employer himself in the abovementioned form, to be seen and agreed by the employee, and otherwise contain a general reference to protection "by regulation on matters including rest breaks, paid holidays, sex and race discrimination, and maternity and parental leave". With regard to criminal law, the leaflet specifies that everybody in the United Kingdom has full protection, whatever the nationality or conditions of stay, and provides examples regarding sequestration, rape and violence. The Committee takes due note of these indications and hopes that the Government will also comment on the statement made by the United Kingdom Worker member at the Conference Committee in 2000 that "the underlying problem, which still appeared to be unresolved, was that the de facto relationship under which the domestic worker was admitted to the United Kingdom was not recognized under British law, so that normal legal employment protections did not attach".

2. In earlier direct requests, the Committee had noted the indications of the Government concerning the cases of abuse of domestic workers which had been brought before the courts, and requested the Government to communicate details concerning the court decisions, including the number of convictions and the penal sanctions imposed, in accordance with Article 25 of the Convention. In its report, the Government replied that, as had been explained previously, it is unable to provide details of individual cases brought before the courts as the Home Office Court Proceedings Central Database does not record cases by gender, status or nationality of the victim. The Committee notes this explanation.

II.  Prisoners working for private companies

3. Further to its previous comments, the Committee notes the Government’s statement to the Conference Committee in 2000 that no prisoner in the United Kingdom - whether in a publicly run or privatized prison or workshop - was hired to, or placed at the disposal of, private individuals, companies or associations. The Government explained that while private sector companies might supervise the work on a day-to-day basis, the prisoner remained under the ultimate care and control of prison service officials; wages were paid to prisoners by the prison and not by the private company providing the work; and the Government considered that its present policies for the employment of prisoners conformed with the requirements of the Convention and were in the best interests of prisoners. These views were repeated in the Government’s latest report on the Convention and rejected by the TUC in its comments on that report.

The Committee has taken due note of these views and comments. With regard to the notions of "hiring to" and "placing at the disposal of" and their relationship with "public supervision and control" and the flow of payments among the various parties involved, the Committee refers to the explanations given in paragraphs 96 and 118-127 of its general report to the International Labour Conference in 2001 and in points 6 and 7 of its general observation on the Convention this year, confirming the conclusion that the exception from the scope of the Convention provided for in Article 2(2)(c) of the Convention for compulsory prison labour does not extend to privatized prisons and prison workshops - even under public supervision and control.

4. In its previous comments the Committee recalled that, to be compatible with the Convention, work of prisoners for private companies thus must depend on the freely given consent of the workers concerned. This requires, inter alia, the absence of any menace of a penalty or duress such as making work an element in assessing behaviour for the purposes of reduction of sentence. Moreover, in the context of a captive labour force having no alternative access to the free labour market, "free" consent to a form of employment going prima facie against the letter of the Convention needs to be authenticated by arm’s length conditions of employment approximating a free labour relationship, such as the existence of a labour contract between the prisoner and the private company using his or her labour and free labour market-oriented conditions regarding wage levels, social security and safety and health. With this background, referring also to its general observation under the Convention, the Committee once more addresses the following matter.

  A.  "Outside employment"

5. In its previous observation, the Committee noted with interest the Government’s indication in its 1999 report that:

There are a number of prisons which allow the release, on a daily basis, of prisoners in the last six months of their sentence to enable them to work. These prisoners are normally employed within a free labour relationship as a part of their rehabilitation and resettlement back into society.

...

Prisoners who do work out are subject to normal requirements in respect of income tax and national insurance contributions from the wages they receive for their work. However, it should be noted that:

-  prisoners who work outside are released on temporary facility
  licence (under rule 9(3)(b) of the Prison Rules, 1999) with the main
  or primary purpose of allowing them to undertake work for outside
  employers, and are working "in pursuance of prison rules". They
  are therefore excluded from the national minimum wage by virtue
  of section 45 of the National Minimum Wage Act, 1998;

-  it is, nevertheless, prison service policy that such arrangements must not
  give an unfair competitive advantage to those who employ prisoners, and
  employers must not treat prisoners less favourably than other workers in
  comparable employment. It is expected, therefore, that prisoners who work
  for outside employers, doing a normal job ..., will be paid the appropriate
  rate for the job. Where prisoners work less than the normal working week,
  it is acceptable for them to be paid pro rata.

6. The Committee had hoped that prisoners who were thus released on a daily basis to work for outside employers, doing a normal job "within a free labour relationship", would benefit from general labour legislation, and that in view also of prison service policy regarding the payment of normal wages, the anomaly of their exclusion from the National Minimum Wage Act, 1998, would be resolved.

7. In response, the Government indicated in its latest report that:

Release from prison can only be ordered by the courts. Prisoners involved in outside work have been licensed by the prison Service to leave prison for the purpose of attending work. The Government therefore continues to be of the view that such prisoners are not "released" to engage in employment.

The Committee notes the subtlety of these distinctions but must point out that they contradict not only the Government’s previous report, as quoted in paragraph 5 above, but also the very terms of rule 9 of the Prison Rules, 1999 which provides that:

(1)  The Secretary of State may ... release temporarily a prisoner to whom this rule applies.

(2)  A prisoner may be released under this rule for any period or periods and subject to any conditions.

(3)  A prisoner may only be released under this rule: ... (b) to engage in employment ...

8. The Government further explained in its latest report that "prisoners are not covered by the National Minimum Wage Act because they do not constitute a ‘worker’ as defined by section 53(3) of that Act in that they do not have a contract of employment or a contract for personal work or services". The Committee notes these explanations but must recall that it is precisely on these points that a change in law and practice appears desirable and feasible for outside employment in the light of the Government’s indications in its 1999 report. Prisoners "employed within a free labour relationship" ought to have a contract of employment with the private enterprise using their services and labour legislation, including the minimum wage legislation, should be made applicable to such employment. The Committee hopes that measures will be taken to introduce the corresponding changes in law and practice.

9. In its report, the Government further states:

Another relevant factor is that prisoners’ accommodation, clothing, meals, etc., are provided by the prison service, without any costs to the prisoner. It is therefore likely that a prisoner undertaking outside employment and benefiting from the national minimum wage would, in practice, be at an advantage to a person outside prison doing the same work for the same wages, who would be expected to pay for his or her own accommodation, clothing and meals.

Commenting on this, the TUC expresses surprise:

... that the Government fails to mention the Prisoner’s Earnings Act, 1996, which addressed the matter of prisoners earning "enhanced wages" for work which is not "directed work" in pursuance of prison rules, and provides, inter alia, for deductions for such costs, for income tax and national insurance deductions, for attachments to earnings to support the prisoner’s family or for victim support, and for savings to be used on release to aid social reintegration. Section 1(3) of the Act specifically alludes to earnings paid otherwise than by the prison governor on behalf of the Secretary of State.

In this connection, the Committee refers to paragraph 142 of its general report to the International Labour Conference in 2001, where it recalled that in the free labour market wages may, in the words of Articles 8 and 10 of the Protection of Wages Convention, 1949 (No. 95), be subject to "deductions" and "be attached or assigned" under conditions and within limits prescribed by national laws or regulations. For prisoners employed by private enterprises, this implies that their wages may also be subject to deductions for board and lodging provided and "be attached or assigned" so as to satisfy compensation claims of victims as well as alimony or other obligations of the prisoners, both of which would be illusory if exploitative wage rates prevailed.

  B.  Contracted-out prisons and prison industries

10. The Committee once more notes with regret that the necessary measures to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship - as recalled in paragraph 4 above and to a certain extent implemented in "outside employment" of prisoners with private employers - have so far not been taken with regard to prisoners working in contracted-out prisons and prison industries.

11. In its report received in November 2000, the Government indicates, with regard to the work performed in contracted-out prisons or workshops in the United Kingdom, that:

All prisoners, whether they are in a public or privatised prison, and whatever work they may be involved in, remain under the ultimate supervision of the State in the United Kingdom. The Government also continues to be of the view that no prisoner is "hired" to a private company. Private companies do not pay the Prison Service to provide it with labour. Nor are prisoners placed "at the disposal" of a private company. Such a term implies private companies being allowed to use prisoners for whatever purposes they wish, whereas the work that prisoners perform in contracted-out prisons or prison industries in the United Kingdom is specific and is comparable with that done by prisoners in public prisons, with the same audit baselines monitored by public authority.

12. The Committee has taken due note of these indications.

(a)  As regards "ultimate supervision" and "audit baselines" monitored by public authority, the TUC in its comments has expressed the view that "ultimate supervision" does not amount to day-to-day supervision, which in contracted-out prisons is performed by employees of private companies and does not meet the requirements of the Convention. In this regard, the Committee, referring also to paragraphs 119 and 120 of its general report of last year, wishes to recall that even where prisoners remain at all times under the supervision and control of a public authority, this does not in itself dispense the Government from fulfilling the other condition in Article 2(2)(c), namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

(b)  As regards the Government’s statement that prisoners are not "hired" to private companies because these do not pay the prison service to provide them with labour, the Committee notes the comment made by the TUC that:

If private companies are paying £50 million annually to prisons for the fulfilment of contracts, and that £50 million is not being paid in wages to prisoners, to whom is it being paid?

(c)  As regards the notion of "placing at the disposal", the Committee refers to the explanations given in paragraph 123 of its general report of last year and point 7 of its general observation this year.

13. In its report received in November 2000, the Government further indicated that in its view:

... there is, under Convention 29, no requirement that conditions approximating a free employment relationship are necessary to ensure the consent of prisoners to work.

With regard to, in the terms of Article 2(1) of the Convention, "voluntary offer" of services by a person deprived of the choices of the free labour market, the Committee refers to the explanations set out in paragraphs 128 to 142 of its general report of last year and recalled in points 10 and 11 of its general observation, showing the need for arm’s length conditions of employment approximating those accepted by workers having access to the free labour market.

14. The argument about "conditions approximating a free employment relationship" should not divert attention from the fact that in privatized prisons and prison workshops in the United Kingdom even the formal consent of prisoners to work does not appear so far to be asked for. In addition, where the Government in its report referred to prison service pay schemes designed to allow the prison to establish an in-house "labour market" that rewards prisoners for good performance "when addressing those issues identified as necessary to assist with their resettlement, as well as tasks that are performed to allow a prison to function", the TUC in its comments asked how such schemes, if they have become an integral part of assessing, for example, a prisoner’s eligibility for parole, are compatible with the requirement that no duress should be applied in order to persuade a prisoner to perform work for a private company. It is noteworthy that in the one field where the Government appears to reckon with prisoners’ consent, namely "outside employment", it is also expected, in the terms of the Government’s report recalled in paragraph 5 above, "that prisoners who work for outside employers doing a normal job" will "be paid the appropriate rate for the job".

15. The Committee again expresses the hope that with regard to contracted-out prisons and prison industries, the necessary measures will be taken to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship and that the Government will soon be in a position to indicate steps made to this end.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

Referring to its observation under the Convention, the Committee requests the Government to supply additional information on the following points.

1. Domestic workers from abroad

In its previous direct request, the Committee had taken note of the indications of the Government concerning the cases of abuse of domestic workers which have been brought before the courts, and requested the Government to communicate details concerning the court decisions, including the number of convictions and the penal sanctions imposed, in accordance with Article 25 of the Convention. The Committee hopes that the Government will supply this information with its next report.

2. Unconvicted prisoners

In its previous direct request, the Committee had asked the Government to specify the means by which remand prisoners were encouraged to participate in work.

The Committee notes the information given by the Government in its reply regarding the privileges scheme established under Prison Rule 4(3) of the former Prison Rules, which corresponds to Rule 8(3) of the 1999 Prison Rules. It notes that there are three privilege levels, "basic", "standard" and "enhanced", under a national framework which includes the withdrawal of privileges if prisoners do not continue to meet required standards. The national framework applies to all prisoners, including unconvicted prisoners, but its application to unconvicted prisoners reflects the additional rights and privileges which flow from their special legal status. Unconvicted prisoners are not required to work although under the terms of Rule 31(5) of the 1999 Prison Rules (Rule 28(5) of the former Rules), "an unconvicted prisoner shall be permitted, if he wishes, to work as if he were a convicted prisoner".

The Government indicates that consequently unconvicted prisoners enter schemes at the standard level and move to the enhanced level, and from the enhanced level back to standard level on the basis of assessments of behaviour and participation in a range of activities, including work where this is available.

The Government adds that in practice at HMP Blakenhurst, the prison is contractually obliged to provide work for convicted and sentenced prisoners as a first priority. Only if no convicted prisoner was available to do the task would it be offered to an unconvicted prisoner who had expressed an interest.

The Committee takes due note of these indications. It would appreciate disposing of further information regarding (a) the scope of "privileges" available to prisoners at different levels, (b) the opportunity to earn wages and (c) the Government's views on data provided by the TUC in its observations.

(a) Privileges

The Committee observes that conviction in a court of law is one of the conditions for compulsory prison labour to be exempted from the scope of the Convention under Article 2(2)(c) and to fall within the definition of "forced or compulsory labour" in Article 2(1) of the Convention, work or service must be exacted "under the menace of any penalty". In this regard, the Committee has recalled in paragraph 21 of its 1979 General Survey on the abolition of forced labour that "It was made clear during the consideration of the draft instrument by the Conference that the penalty here in question need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges."

The Committee requests the Government to supply full details on the range of "privileges" of prisoners included at the "standard" and "enhanced" levels.

(b) Wages

The Committee further notes, with regard to the opportunity to earn wages, that under Rule 62 of the 1964 Prison Rules, prisoners awaiting trial or sentence were to benefit from Rules 58 to 60 as they applied to an appellant, but that Rule 61, under which "an appellant, if discharged on his appeal, shall be entitled to payment at a special rate ... for work done by him under Rule 28 of these Rules while he was treated as an appellant" was not made applicable to prisoners awaiting trial or sentence. The Committee also notes that the provisions of Rule 61 appear to have been omitted from the Prison Rules now in force. It requests the Government to specify whether the opportunity to earn wages is limited for remand prisoners to the levels fixed for convicted prisoners, or whether market rates are to apply.

(c) Data provided by the TUC

The Committee notes the TUC's indication in its observation received on 15 November 1999 that in Brockhill, a remand prison for young women run by the state Prison Service, prisoners were paid o8 per week for removing threaded eyelets from wooden curtain rings, work that appeared to have the intended function primarily of "occupational therapy"; that the prison was paid o4.16 per thousand rings and the job consisted of 33,000 rings, which was completed by four prisoners in a week. According to the TUC's figures, the weekly wage of o8 paid to the unconvicted prisoners involved thus not only was far below the minimum wage for adult workers, but also represented less than a quarter of what was actually being paid for their work by an outside company.

Recalling the Government's indication in its report that for unconvicted prisoners, participation in work activities was "providing an opportunity to earn wages" as well as enhancing their privilege level, the Committee requests the Government to comment on the figures supplied by the TUC.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee has noted the information supplied by the Government in 1998 and 1999 in response to its earlier comments, and an observation received on 15 November 1999 from the Trades Union Congress (TUC) concerning work by prisoners for the benefit of private companies, a copy of which was sent to the Government for any comments it might wish to make on the matters raised therein.

I. Domestic workers from abroad

1. The Committee notes with interest the Government's indication in its latest report that following concerns at reports of abuse of domestic workers accompanying their employers to the United Kingdom, conditions under which they are admitted have been fully reviewed with the assistance of Kalayaan, the organization which represents overseas domestic workers. A number of significant changes have been agreed, which came into effect on 23 July 1998. Once in the United Kingdom a domestic worker will be able to make an application to change employer, provided that the employment will continue to exceed basic duties set out in the International Standard Classification of Occupations. It has also been agreed that domestic workers admitted under the previous concession who have left their original employer because of abuse or exploitation and thus find themselves in an irregular situation, may apply to regularize their stay.

2. Noting also that serious problems remain with regard to the effective implementation of the new rules as set out in the TUC observation, the Committee trusts that these problems will be addressed in the discussions that were to take place in November between the Government and Kalayaan, and that the Government will comment on the TUC's observations and supply information on further measures taken.

II. Prisoners working for private companies

3. In summary, in its previous comments, the Committee recalled that it is only when prisoners perform work in conditions approximating a free employment relationship that such work for private companies can be held compatible with the explicit prohibition in Article 2(2)(c). This necessarily requires the voluntary consent of the person concerned, and there must be further guarantees and safeguards covering the essential elements of a labour relation, including payment of normal wages and social security, etc., to remove the employment from the scope of Article 2(2)(c) (which unconditionally prohibits that persons who are under an obligation to perform prison labour be hired to or placed at the disposal of private companies). The Committee accordingly expressed the hope that the necessary measures would be taken as regards both national law and practice to ensure that any work by prisoners for private companies be performed under conditions which are freely consented to by the prisoner; ensuring that consent is not given in a situation of constraint by virtue of being a convicted prisoner; the existence of a labour contract between the prisoner and the private company employing him or her; and that, whatever the work, it would be performed under normal conditions regarding wage levels, social security and safety and health. With this background the Committee addresses the following matters.

A. "Outside employment"

4. The Committee notes that under rule 9(2) and (3)(b) of the Prison Rules 1999, a prisoner may be released "for any period or periods and subject to any conditions", inter alia, "to engage in employment". It notes with interest the Government's indication in its 1999 report that in practice there are a number of prisons which allow the release, on a daily basis, of prisoners in the last six months of their sentence to enable them to work. These prisoners are normally employed within a free labour relationship as a part of their rehabilitation and resettlement back into society. Prisoners who do work outside are subject to normal requirements in respect of income tax and national insurance contributions from the wages they receive for their work. While prisoners thus released to work outside are held to be working "in pursuance of prison rules" and therefore excluded from the national minimum wage by virtue of section 45 of the National Minimum Wage Act 1998, it is nevertheless prison service policy that such arrangements must not give an unfair competitive advantage to those who employ prisoners, and employers must not treat prisoners less favourably than other workers in comparable employment. It is expected, therefore, that prisoners who work for outside employers, doing a normal job, will be paid the appropriate rate for the job. Where prisoners work less than the normal working week, it is acceptable for them to be paid pro rata.

5. The Committee considers that prisoners thus "employed within a free labour relationship" are not "working in pursuance of prison rules" but rather (in the terms of rule 9 of the Prison Rules 1999) "released" in pursuance of prison rules "to engage in employment" in the free labour market. The Committee hopes that prisoners who thus work for outside employers, doing a normal job within a free labour relationship will benefit from general labour legislation, and that in view also of prison service policy regarding the payment of normal wages, the anomaly of their exclusion from the National Minimum Wage Act 1998 will be resolved. The Committee looks forward to learning of measures taken to this end.

B. Contracted-out prisons and prison industries

6. The Committee notes with regret from the Government's reports that the necessary measures to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship - as recalled in paragraph 3 above and largely implemented in "outside employment" of prisoners with private employers - have not likewise been taken with regard to contracted-out prisons and prison industries.

7. In the view of the Government, under none of the existing arrangements for the provision and management of prison work and training programmes is the prisoner being "hired to or placed at the disposal of private individuals, companies or associations". The public authorities remain responsible for and in control of all prisoners at all times. The Government emphasizes that this applies to all prisons in the United Kingdom, whether they are managed directly by HM Prison Service or through a contractor. The Government also points out that at present only seven prisons out of a total of 138 are contractually managed.

8. The Committee recalls that under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is not exempted from the scope of the Convention unless two conditions are met, namely "that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". Thus, the fact that the prisoner remains at all times under the supervision and control of a public authority does not dispense with the requirement to fulfil the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

9. On this latter issue, the Government stresses in its 1998 report that the contracts between the Prison Service and the company managing a contracted-out prison or a prison workshop (or other employment activities) do not concern the provision of prisoners to work. There is no contractual obligation on the Prison Service to provide a labour force to private sector contractors running a prison/workshop. Nor is it the case that the Prison Service is hiring out labour as there is no contractual obligation to provide a labour force. Rather, the contractor is obliged simply to provide facilities so that prisoners may work as part of the prison's rehabilitative regime and in accordance with the Prison Rules. Contractors cannot require prisoners to undertake any work outside the terms of the contract or outside the terms of prison rules and policies.

10. The Committee takes due note of these indications. It recalls that prison labour is compulsory for convicted prisoners under the prison rules; thus, where prison workshops or a whole prison are contracted out to a private company, they are contracted out with a captive workforce, and there is no need for a contractual clause regarding the provision of labour since the State ensures through statutory instruments that the captive workforce must, in the terms of the Government's report, "cooperate with the regime". To be made compatible with the Convention, the contracting out of prisons or prison workshops thus requires the introduction of the conditions recalled in paragraph 3 above.

11. The Committee also notes the Government's indications in its 1998 report that arrangements for private sector management of prison workshops have "significant practical benefits by increasing the range and quality of work and training opportunities available to prisoners. Where higher wages are available to prisoners, this enables them to begin saving in preparation for release".

12. As to the range and quality of work and training opportunities, the Committee notes, from the Government's 1999 report, that under present arrangements, most of the work undertaken in prisons involving external contractors "is labour-intensive and if done externally could not be done economically. In the absence of prisons taking on the work it is likely that the processes would be automated or taken abroad".

13. More importantly, as regards "higher wages available to prisoners", the Committee notes the indication by the TUC in its observations that at Blakenhurst, a prison where 150 prisoners were engaged in work for outside companies and 300 worked for UK Detention Services, the private company which runs the prison, prisoners reported that either category were paid at between 10 and 15 a week; even the highest earnings were below the lower earnings level for social security contributions and below the minimum wage of 3.60 per hour for adult workers. The Committee awaits the Government's comments on these figures.

14. In concluding this observation, the Committee notes the TUC's view that the Government should redress the work regime in contracted-out prisons so as to comply with the criteria of a free labour relationship, and that pre-release schemes should be encouraged where they provide for social and labour market reintegration through outside work in which the fundamental rights at work of prisoners are protected - including through the establishment of a direct employment relationship between the prisoner and the employer. The Committee hopes that the necessary measures will be taken to organize the work in contracted-out workshops and prisons in a manner compatible with the Convention, and that the Government will supply full information on the steps taken to this end in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee's previous observation, following comments received from the Trades Union Congress, related to the question of prison labour under Article 1(1) and Article 2(1) and (2)(c) of the Convention, as well as the question of domestic workers from outside the country. The Committee now notes that the Government's report was received on 16 November 1998, shortly before its session. The Committee has inadequate time to consider the report and has no alternative but to return to the matter at its next session. It consequently requests the Government to provide any more recent information it wishes to bring to the Committee's attention, in good time for its next session.

[The Government is asked to report in detail in 1999.]

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. Domestic workers from abroad. The Committee referred, in its comments from 1994, to information presented to the Working Group on Contemporary Forms of Slavery of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights of the United Nations, according to which certain employers, of whom the majority are of foreign origin, withhold the wages and identity documents (passports) of foreign workers in their domestic service. The Committee requested the Government to communicate information on the legislation applicable to such workers, on the conditions of entry and stay in the United Kingdom and on measures taken to investigate the allegations as well as on the sanctions imposed.

In the report of 1996 (E/CN.4/Sub.2/1996/24, paragraph 74) of the same working group, note was taken of the indications previously supplied to this group by the representative of the non-governmental organization Kalayaan, according to which whatever the consequence of the "exceptional" status of permit of entry for domestic workers, such workers are not protected either by the Immigration Law or by the British labour laws. These workers are authorized to work for an employer whose name is specified on the passports of the workers, who thus cannot change jobs in case of abuse by the employer.

In its report the Government indicates that under the Immigration Rules persons who are not nationals of countries of the European Economic Area must obtain a work permit if they wish to work in the United Kingdom. The requests must be addressed by the employer to the Department of Employment and Education and are granted on the condition that they pertain to jobs which require highly technical qualifications and experience and which cannot be met by the resident population. In the case of domestic workers, to whom a work permit cannot be granted, since the work is not skilled labour, a special authorization is granted outside the Immigration Rules and according to strict criteria: the authorization for entry into the country must be obtained abroad, the person must be at least 18 years of age and must have worked for the employer for 12 to 24 months depending on whether the request is for a visit to the country or for other purposes, the worker is interviewed and informed, in a pamphlet, of the places to go in case assistance is required. The employer must set forth in a written statement the conditions of salary, housing and support, a copy of which is given to the worker who must then indicate his or her agreement. The officials responsible for processing the entry permits must verify the voluntary nature of the agreement and assure themselves that the worker has understood the rights he or she is entitled to in the United Kingdom. Such interviews are carried out without the presence of the employer. The Government emphasizes that any person, regardless of nationality or the purpose of stay in the country, has the right to the full protection of the penal law and can report to the police any physical abuse or deprivation of liberty. Cases of such abuse have been brought before the courts and have resulted in convictions and sanctions. The Government also indicates that foreign workers, including those in domestic service, have the same right as national workers to benefit from the protection against dismissal, a detailed salary report, a written contract on the conditions of work, and means of recourse against the employer for non-fulfilment of agreed conditions.

The Committee takes note of the comments presented by the Trades Union Congress (TUC) on this question in its communication received on 31 October 1996. The TUC alleges that an average of 12,000 permits yearly are issued abroad for domestic workers, of which the majority are women who emigrate from developing countries, and whose work permits are linked to specific employers (the person thus cannot change employers), which opens the way for exploitation, as evidenced by the abundance of cases of abuse. The TUC refers in its comments to the non-governmental organization Kalayaan, which has documented 2,100 cases of domestic workers who escaped and reported abuses of which they have been victims including the confiscation of passports, the non-payment of wages, the impossibility of travel, excessive hours of work (10 to 16 hours, seven days a week), terrible food and housing conditions, physical abuse, threats, and sexual assaults including some cases of rape.

The Committee observes that the situation of workers who cannot terminate an employment relationship, although freely entered into, does not correspond to the contract, and in addition restrictions imposed on the freedom of movement and the use of force to exact work or service are elements which constitute a violation of the Convention.

The Committee has taken note of the indications of the Government concerning the cases which have been brought before the courts, and it requests the Government to communicate details concerning the court decisions, including the number of convictions and the penal sanctions imposed, in accordance with Article 25 of the Convention.

The Committee requests the Government to supply information on measures taken to ensure that the restrictions imposed on the change of employment by domestic workers do not give rise to the exploitation of captive labour.

The Committee will also consider this matter under Convention No. 97, ratified by the United Kingdom.

2. Article 2(2)(c) of the Convention. Referring to Part I of its observation under the Convention, the Committee requests the Government to indicate whether the arrangements made under rule 4(3) of the Prison Rules 1964, as amended in 1995, may be applied to remand prisoners and, if so, to what extent. Also, recalling that remand prisoners at Blakenhurst prison were able to participate in work if they so wished and were encouraged to do so, the Committee requests the Government to specify the means by which remand prisoners were so encouraged.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. Further to its earlier comments concerning the privatization of prisons and work performed by prisoners, the Committee notes the information supplied by the Government in its report for the period 1 July 1993 to 31 May 1996, received too late to be examined at its previous session. It also notes the comments made by the Trades Union Congress (TUC) in a communication received 31 October 1996 on the position of domestic working people from other countries working in the homes in Britain of employers from abroad. It furthermore notes a communication received on 19 November 1996 from the TUC on the issue of prison labour being used by private companies, and the Government's observations received 9 December 1996 on that issue.

I. Prisoners working for private companies

A. Requirements of the Convention (Article 2, paragraph 2(c))

2. The Committee recalls that under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is not exempted from the scope of the Convention unless two conditions are met, namely "that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". Thus, the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense with fulfilling the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

3. On this latter issue, the Committee stressed in earlier comments made under the Convention that the provisions of Article 2(2)(c) are not limited to cases where a legal relationship would come into existence between the prisoner and the private undertaking, but cover equally situations where no such legal relationship exists. The Committee also noted that typically, a prisoner "is hired to" a private company under a contract between the prison service and the company. Thus, the triangular relationship in which the prisoner's labour is the subject of a contract between the prison service and a private company corresponds exactly to what is referred to in Article 2, paragraph 2(c), as incompatible with the Convention, in so far as the prisoner is obliged to work.

4. In its previous observation on the observance of the Convention in the United Kingdom, the Committee recalled that, as indicated in paragraph 98 of its 1979 General Survey on the abolition of forced labour, the provisions of the 1930 Convention which prohibit convict labour from being hired to or placed at the disposal of private individuals, companies or associations are not limited to work outside penitentiary establishments but apply equally to workshops which may be operated by private undertakings inside prisons, and that, a fortiori, the prohibition covers all work organized by privately run prisons.

5. In paragraph 97 of its 1979 General Survey on the abolition of forced labour, the Committee noted that in certain countries certain prisoners may, particularly during the period preceding their release, voluntarily accept employment with private employers, subject to guarantees as to the payment of normal wages and social security, consent of trade unions, etc. In this connection, the Committee notes the Government's indication in its observations received on 9 December 1996 that "on the very rare occasions when a prisoner does work directly for an outside employer (which may happen for a period when a long-term prisoner is undergoing preparation for release, for example), he or she does so voluntarily". The Committee has considered that, provided the necessary safeguards exist to ensure that the persons concerned offer themselves voluntarily without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention.

6. As the Committee has repeatedly pointed out, only when performed in conditions of a free employment relationship can work for private companies be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, there must be further guarantees and safeguards covering the essential elements of a labour relation, including a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2(2)(c) which unconditionally prohibits that persons who are under an obligation to perform prison labour be hired to or placed at the disposal of private companies.

B. State of national law and practice

7. The Committee notes that several changes have been made in recent years in the national laws and regulations dealing with prisons and prison labour, as well as in actual practice, and that no measures were taken on these occasions to take into account the requirements of the Convention.

(a) Contracted-out prisons and prison industries

8. In previous comments the Committee referred to section 84 of the Criminal Justice Act 1991, under which the Secretary of State could enter into a contract with a private contractor for the running by him of any prison which: (a) was established after the commencement of that section, and (b) was for the confinement of remand prisoners. These two restrictions were removed by statutory orders in 1992 and 1993, and the Committee noted that at Blakenhurst prison (which had been contracted out as from 26 May 1993 to the "UK Detention Service", a joint venture of "Mowlen Alpina" and "Corrections Corporations of America"), the contract with the private operators provided that convicted and sentenced prisoners would be required to participate in work and vocational programmes, while remand prisoners were able to participate if they so wished, and were encouraged to do so.

9. The Committee notes that section 84 of the 1991 Act was amended by section 96 of the Criminal Justice and Public Order Act 1994. Section 84(1) of the Criminal Justice Act 1991 now reads:

The Secretary of State may enter into a contract with another person for the provision or running (or the provision and running) by him, or (if the contract so provides), for the running by subcontractors of his, or any prison or part of a prison.

Section 84(4) as amended specifies that:

In this Part -- contracted-out prison' means a prison or part of a prison for the running of which a contract under this section is for the time being in force; the contractor', in relation to a contracted-out prison, means the person who has contracted with the Secretary of State for the running of it; and subcontractor', in relation to a contracted-out prison, means a person who has contracted with the contractor for the running of it or any part of it.

10. The Committee notes that under section 85(1) of the Criminal Justice Act 1991:

Instead of a governor, every contracted-out prison shall have -- (a) a director, who shall be a prisoner custody officer appointed by the contractor and specially approved for the purposes of this section by the Secretary of State; and (b) a controller, who shall be a Crown servant appointed by the Secretary of State; ...

The respective functions of the director and the controller are set out in sections 85(2) and (4) and 87 of the same Act, with consequential modifications of the Prisons Act 1952.

11. According to section 85(2) read together with section 87 of the 1991 Act, most of the functions that the Prisons Act 1952 confers upon the Governor of a prison, shall, in a contracted-out prison, be exercised by the director: thus, section 13(1) of the Prisons Act 1952 provides that "Every prisoner shall be deemed to be in the legal custody of the governor of the prison ...", and under subsection (2), "A prisoner shall be deemed to be in legal custody while he is confined in, or is being taken to or from, any prison and while he is working ...". Section 87(4) of the Criminal Justice Act 1991 provides that in relation to a contracted-out prison, the above reference to "the governor" in section 13(1) of the Prisons Act 1952 shall be construed as a reference to "the director" (who is appointed by the contractor).

12. According to section 85(4) of the 1991 Act:

The controller shall have such functions as may be conferred on him by prison rules and shall be under a duty -- (a) to keep under review, and report to the Secretary of State on, the running of the prison by or on behalf of the director; and (b) to investigate, and report to the Secretary of State on, any allegations made against prisoner custody officers performing custodial duties at the prison.

13. Under section 85(5) of the 1991 Act, as amended by section 101(1) of the Criminal Justice and Public Order Act 1994:

The contractor and any subcontractor of his shall each be under a duty to do all that he reasonably can (whether by giving directions to the officers of the prison or otherwise) to facilitate the exercise by the controller of all such functions as are mentioned in or conferred by subsection (4) above.

14. The Committee notes the Government's indication in its report that the contract entered into by the Secretary of State and the contractor spells out the contractor's obligations in detail, and that the supervision and control of the Home Secretary is exercised through the director (appointed by the contractor and specially approved by the Secretary of State) and the controller (a Crown servant appointed by the Secretary of State, together with the Board of Visitors and Her Majesty's Chief Inspector of prisons). The Government explains that:

While one of the roles of a controller of a contracted-out prison is to inquire and adjudicate on disciplinary charges brought against prisoners, the role is not limited to this function. The duty of the controller under section 85(4) of the Criminal Justice Act 1991 is to keep under review, and report to the Secretary of State on, the running of the prison and to investigate, and report to the Secretary of State on, any allegations made against prisoner custody officers. Section 88 of the Act provides for the intervention of the Secretary of State in the event of the director losing effective control of the prison.

The Government concludes that "the Secretary of State thus retains considerable supervisory functions and a high degree of state superintendence continues to exist at contracted-out prisons".

(b) Compulsory nature of labour to be performed by convicted prisoners in any prison

15. The Committee notes that under rule 28(1) of the Prison Rules 1964 (S.I. 1964/388) "A convicted prisoner shall be required to do useful work for not more than ten hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another." Under paragraph (5) of the same rule "An unconvicted prisoner shall be permitted, if he wishes, to work as if he were a convicted prisoner."

16. The Committee notes that these provisions apply throughout every prison, be it administered by the State or (entirely or partly) run by private contractors under a contract entered into by the Secretary of State under section 84 of the Criminal Justice Act 1991, as amended by section 96 of the Criminal Justice and Public Order Act 1994.

17. The Committee moreover notes that under rule 4(1) of the Prison Rules 1964, as amended by the Prison (Amendment) (No. 2) Rules 1995, "There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison". Under paragraph (3) of the same rule "Systems of privileges under paragraph (1) may include arrangements under which privileges may be granted to prisoners only in so far as they have met, and for so long as they continue to meet, specified standards in their behaviour and their performance in work or other activities".

18. The Committee recalls that, as indicated in paragraph 21 of its 1979 General Survey on the abolition of forced labour, it was made clear during the consideration of the draft instrument by the Conference that the "penalty" referred to in Article 2(1) of the Convention need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges.

19. Thus, prison labour is compulsory within the meaning of the Convention under both rule 28(1) and the arrangements referred to in rule 4(3) of the Prison Rules 1964, as amended.

20. Wages. The Committee has noted the information supplied concerning prisoners' pay in prisons contracted out to private companies. In its report, the Government indicates that "The prison service continues to examine ways of providing more direct private sector involvement in prisoners' employment which offer prisoners engaged in such activity the opportunity to receive significantly increased earnings." The Committee notes from the Report on HM prison Blakenhurst by HM Chief Inspector of Prisons, published October 1994, that "Pay rates across the board averaged 8 a week but in the workshops, where piece rates or a sessional rate applied, inmates could expect to earn between 15 and 17 a week. There were even higher pay rates for a number of the inmates employed in the kitchen." According to the TUC comments received 19 November 1996, the Government's statistics for the same prison "show that the highest total weekly wage, including bonuses, is 14. 50 for canteen orderlies, the lowest 10 for those working in the gym, gardens, as painters, or on maintenance". As a basis for comparison, the Committee also notes from "Britain 1996", an official handbook prepared by the Central Office of Information, average weekly earnings of 272 for manual employees and 372 for non-manual employees in the country.

C. Comments by the TUC

21. In its communication received on 19 November 1996, the TUC stresses that while work opportunities for prisoners are central to rehabilitation, work by prisoners should be performed within the framework set by the Convention. The TUC remains of the view that the Convention forbids the use of prison labour by private companies -- except where the following conditions are met:

-- the contractual relationship must be between the company and the prisoner, not the company and the prison;

-- the prisoner's consent must be genuine and freely given -- which in turn requires guarantees with respect to wages;

-- the employer must pay social insurance contributions as for other workers;

-- the prisoner's consent to take up or continue such work must not be the result of threats of punitive sanctions such as loss of remission;

-- labour law and labour inspection regulations must apply.

22. The TUC further indicates that:

The day-to-day running of prisons is managed by private companies. The Secretary of State has made it clear on numerous occasions, following disturbances in prisons or escapes by prisoners, that he is not responsible for the day-to-day running of prisons, whether public or private. Convicted prisoners may be required to work in British law. Directors of privately run prisons are appointed by the (private) contractor and approved by the Secretary of State but all activity undertaken by prisoners cannot be under the supervision or control of a minister. The right of the controller of a contracted-out prison, who is appointed by the Secretary of State, to intervene if a director loses control of a prison does not amount to effective state supervision of the work of prisoners in such prisons.

23. According to the TUC:

It is incorrect to state that prisoners are not being placed at the disposal of private companies. Even if the work processes were being supervised by prison officers employed by the public prison service as opposed to private security guards in contracted-out prisons, where prisoners are producing goods for private companies to sell on the market, their labour is clearly at the disposal of such companies. ILO jurisprudence has been clear that, amongst the criteria applied to determine whether prison labour for private companies falls within the terms of the Convention, is the criterion that any employment relationship must be between the individual prisoner and the company and freely entered into. The prisoner may not be contracted to work for the private company by the prison.

24. Finally, the TUC considers that:

The information supplied by the Government about the pay of prisoners indicates clearly that they are not being paid the rate for the job, even when they are performing work for the benefit of private companies or for the private contractors running a prison. (...) The TUC opposes the exploitation of cheap prison labour by private companies and the undercutting of the normal wages of law-abiding working people outside prisons or the replacement of their jobs by cheap prison labour. It leads to exploitation and to unfair competition. The practice should be ended in the TUC's view.

D. The Government's reply

25. The Committee notes from the communications received on 9 December 1996 that:

The Government has noted the TUC's comments on its latest report on the application of this Convention and, in particular, on the question of prisoners being engaged in work for private companies. The Government has considered the TUC's view that the employment relationship must be between the prisoner and the employer rather than the prison and the employer but understands that this would only apply where the prisoner is placed compulsorily at the disposal of private individuals, companies or associations.

In the Government's view:

Such a situation, however, never arises in the UK, even where the prison is operated by a private contractor. This is because, when prison work is provided by private companies, the contract is between the prison service and the company. The prisoner's relationship is not with the private company but with the prison. All work in prisons in the UK is undertaken under the supervision and control of a public authority. Prisons operated by private companies under contract to the prison service are supervised by on-site public servants -- the controllers -- and they are subject to other forms of public control and supervision as well.

The Government concludes that "the work is therefore exempt from the definition of forced labour by virtue of Article 2(2)(c) of the Convention".

26. The Government furthermore indicates that:

The Prisoners' Earnings Act, which applies to prisoners earning "enhanced wages" under the enhanced wages schemes, makes one of the definitions of such a scheme that the prisoner should volunteer for it. The prisoner cannot be required to participate in it.

E. The Committee's conclusions

27. The Committee has taken due note of the conflicting views of the Government and the TUC as to the degree of supervision and control of the public authorities over work performed in prisons and parts of prisons that are contracted out to private companies, run by staff appointed by the latter and sometimes subcontracted by them to other private individuals or companies. The Committee observes that, as indicated in paragraphs 2 and 3 above, even the existence of effective public supervision and control would not dispense with fulfilling the separate condition in Article 2(2)(c) of the Convention that prisoners be not "hired to or placed at the disposal of" private individuals, companies or associations. The supervisory functions retained by the Secretary of State, to which the Government has referred, are to ensure compliance by the private contractor with the terms of the contract entered into, that is, a contract that is in itself in contradiction with the requirements of the Convention, in so far as compulsory prison labour is used by the private contractor or his subcontractor.

28. As regards the "enhanced wages" scheme mentioned by the Government, in which the prisoner cannot be required to participate, the Committee notes that this operates within the framework set by rule 28 of the Prison Rules 1964 and does not remove the compulsory nature of prison labour for convicted prisoners.

29. In order to ensure compliance with the Convention, either the provisions allowing for the contracting out of prisons should be repealed, or persons held in these prisons should be given the rights and guarantees referred to in paragraphs 5 and 6 above.

30. Freely given consent.The Committee is aware that in contracted-out prisons and prison industries, it appears particularly difficult to create the conditions of an employment relationship based upon freely given consent. This would require in the first place the repeal of, or an exemption from, the obligation to work laid down in rules 28(1) and 4(3) of the Prison Rules 1964, referred to above. But even if the director of a contracted-out prison, appointed by the private contractor, had no more right to compel a prisoner to work, he or she and the company behind him or her would still have an interest in having the prisoner's labour at their disposal. The Committee recalls that, as mentioned above, the "menace of a penalty" referred to in Article 2(1) of the Convention might take the form of a loss of rights or privileges. Since the director running the prison on behalf of a private contractor also has legal custody of the prisoner, it would appear both indispensable and very difficult to ensure that the prisoner's willingness or not to work for the private contractor or its subcontractor had no bearing whatsoever on his conditions of imprisonment and expectation of remission of sentence or early release.

31. The Committee hopes that the necessary measures will be taken as regards both national law and practice to ensure that any work by prisoners for private companies be performed under the conditions of a freely consented upon employment relationship: absence of any form of constraint flowing from the condition as a convicted prisoner; existence of a labour contract between the prisoner and the private company employing him or her (be it the contractor running the prison or a part of the prison or a subcontractor and or any other private company, and whatever be the work (domestic work, services, employment in industrial workshops); and normal conditions regarding wage levels, social security and safety and health.

32. The Committee hopes that the Government will supply full information on the measures taken to bring national law and practice regarding contracted-out prisons into conformity with the Convention, as well as on any measures taken to ensure that the position of the TUC will be taken into consideration by the authorities when entering into contracts with private companies that involve their using prison labour. The Committee also requests the Government to supply copies of the contracts entered upon with private companies as far as the use of prison labour is concerned.

II. Domestic workers from abroad

33. With regard to the comments by the TUC on the position of domestic working people from other countries working in the homes in Britain of employers from abroad, the Committee is addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

1. Article 2, paragraph 2(c), of the Convention. Referring also to its observation the Committee requests the Government to provide information on the basic and employment rates fixed nationwide for the state-run prison service. It also again requests the Government to provide information on wages paid at Wolds and at Blakenhurst, in comparison with the nationwide fixed rates for the prison service as well as in comparison with the normal minimum wages applicable in the different work sectors; on social security benefits, especially accident and unemployment insurance. Noting the TUC's comments on conditions and pay of work in state-run prisons which have concluded production contracts with private companies, the Committee hopes that the Government will provide detailed information in this respect.

The Committee has taken note of the Report by the Chief Inspector of Prisons (1991-92) and of the first annual report by the Board of Visitors in Wolds Remand Prison (1992) communicated by the Government with its report. Noting the Chief Inspector's statement that there will be no change in the attitude of most prisoners to work until they have the opportunity of earning a decent wage, the Committee requests the Government to provide copies of any later reports by the Chief Inspector, the Board for Wolds as well as by the Board for Blakenhurst prison. It also requests the Government to provide a copy of the Government's White Paper "Custody, Care and Justice" published in 1991.

2. Article 25 of the Convention. The Committee has taken note of information submitted to the Working Group on Contemporary Forms of Slavery of the United Nations Subcommission on Prevention of Discrimination and Protection of Minorities concerning the situation of foreign domestic workers, and in particular of information stating that certain employers of domestic servants, mostly of foreign origin, hold wages for a long time and confiscate the passports of their workers. The Committee would request the Government to provide information on the legal provisions governing these domestic servants, their conditions of entry and stay in the United Kingdom, on measures taken to investigate these allegations, on prosecutions undertaken and penalties imposed and on any measures envisaged or adopted to ensure the observance of the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

With reference to its comments regarding the privatization of prisons and work performed by prisoners, the Committee notes the information provided by the Government in its report.

The Committee also notes the observations made by the Trade Union Congress (TUC) on the application of the Convention which have been sent by the Government with its report.

Article 2, paragraph 2(c), of the Convention. The Committee noted previously that under the Criminal Justice Act of 26 July 1991, certain prisons may be contracted out (section 84); they are run by a director appointed by the contractor and approved by the Secretary of State, and controlled by a Crown servant (section 85). The Government indicated that the Act enables the Government to seek tenders from the private sector for the management of the new remand prisons and that a first contract had been signed for a period of five years relating to the remand prison of Wolds accommodating prisoners awaiting trial or sentence. The Government also indicated that under the Prison Rules, unconvicted prisoners are not required to work, while for convicted prisoners work is compulsory. At Wolds, work would apply to domestic requirements and to a multi-skills workshop and prisoners choosing to participate would receive pay and acquire training. The Committee also noted the Government's indications concerning control, discipline, inspection and monitoring of prisons and it requested the Government to provide detailed information on the number of prisons contracted out and of prisoners concerned, the wages paid in relation to the normal minimum wages applicable in the different work sectors and other details on social security benefits and on deductions made from pay.

The Committee notes the Government's indication in its latest report that two prisons have been contracted out namely the Wolds Remand Prison (operational as from April 1992) and Blakenhurst Prison (as from 26 May 1993). At Wolds, in a typical week in March 1993 out of an average population of 318 untried or unsentenced prisoners, 122 worked a total of 2,089 hours a week. As concerns Blakenhurst, the contract with the private sector operator requires that convicted and sentenced prisoners (about half of the expected 649 inmates) participate in work and vocational programmes (35 hours per week in a seven-hour day), while remand prisoners are able to participate if they so wish, and are encouraged to do so. The Government adds that opportunities for work in both the internal domestic areas and the internal grounds are provided and there exists a range of workshops with provisions for a number of industrial or training sections which include a laundry, three workshop training areas and two construction industry training shops for painting and decorating courses and plastering. Work in training workshops should lead to nationally recognized qualifications.

As concerns remuneration the Committee notes that the Government refers to the "Prisoners' Pay Manual" published by the Prison Service in November 1992 and communicated by the Government with its report. This pay scheme applies to prisoners in the (state-run) prison service.

According to the Government's indication this new pay scheme provides a framework, delegating application to each prison governor, and there exists no standard payments for different sectors of work available to prisoners in the prison service. The governor sets the pay rates locally and prisoners have to achieve acceptable levels of quality, output and activity which should be agreed with them in advance; where the required standard is not met, reductions in pay can be made. The Government also states that most prisoners do not earn enough to have deductions made from pay.

The Committee notes the Government's statement that it is the intention of the contractors both at Wolds and at Blakenhurst to follow the principles for inmates' pay set out in the "Prisoner's Pay Manual".

The Committee notes that the scheme provides for three different wage levels: a Basic Rate (BR), set nationally, which a prisoner willing to engage in purposeful activity but who cannot be offered a place, should expect to receive to meet his basic needs; an Employment Rate (ER) which is the same for all prisoners across the Service, to be paid to a prisoner engaged in a purposeful activity and who performs this activity to an acceptable level of quality and effort; a Standard Rate (SR) which may be set by the prison governor locally for purposeful activity at a rate above the Employment Rate. For the purpose of the pay scheme, "purposeful activities" encompass work (i.e. in workshops; on farms and gardens; domestic services; works maintenance parties; community projects; or work for outside employers), training and day-time education.

The Committee notes that the Manual stresses that in the prison service prisoners' pay has traditionally been set at pocket-money level; pay levels were inadequate even for this modest purpose; pay increases have been recommended in several reports; thus the "Woolf report" proposed an average weekly wage of 8 and the Government's White Paper "Custody, Care and Justice" published in 1991 accepted this as an initial aim, as soon as resources allow.

The Committee notes the comments by the Trade Union Congress (TUC) that a programme of privatization has been introduced whereby the running of two prisons has been contracted out to private security companies and Blakenhurst prison and Wolds remand prison have been privatized. Blakenhurst is run by "UK Detention Services", a consortium of the Corrections Corporation of America and the construction companies "Mowlem Alpine" which built Wolds. Wolds is run by the "Group 4 Company". As concerns the functions devolved to the Controller which are to inquire into and adjudicate on disciplinary charges brought against prisoners, the TUC considers that this does not amount to supervision and control by a public authority of the prison labour, as required by the Convention. The TUC draws attention to Article 2, paragraph 2(c) of the Convention and the Committee's 1979 General Survey on the Abolition of Forced Labour recalling the rejection (by the Conference) of a proposal which would have permitted the hiring of prison labour to private undertakings engaged in the execution of public works.

The TUC refers more specifically to the nature, conditions and pay of work done by prisoners in the privately run prison of Blakenhurst and in different state-run prisons which have concluded delivery contracts with outside private companies. The Committee notes in particular that the TUC states in relation to Blakenhurst prison, that the Director of the prison service has provided information to the effect that prisoners are engaged in kitchen, wing servery, domestic cleaning, works maintenance, garden work, light assembly and laundry work; that pay scales average 6.50 per week and rates vary according to the work undertaken; and that revenue accruing from work is used for prisoner pay. However, in the opinion of the TUC, normal wages are not paid and, while it is said that profits accruing from prison labour are used to enhance facilities for prisoners, it seems to the TUC that prison labour is being used by a private company to cut the costs of running the prison and enhance private profit.

The Committee notes that the Government has provided no comments in response to the TUC's observations.

The Committee also notes information according to which a further prison is in the process of being contracted out.

The Committee recalls that Article 2, paragraph 2(c), of the Convention, explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law, be placed at the disposal of private individuals, companies or associations. As the Committee has noted in its 1979 General Survey on the Abolition of Forced Labour, in adopting this provision the Conference expressly rejected an amendment which would have permitted the hiring of prison labour to private undertakings engaged in the execution of public works. It is therefore not sufficient to limit the use of prison labour to works of public interest, since such works may be carried out by private undertakings.

The Committee has indicated in the above-mentioned General Survey that the prohibition of Article 2, paragraph 2(c), is not limited to work done outside the penitentiary establishments but applies equally to workshops operated inside prisons by private undertakings. A fortiori, the prohibition covers all work organised by privately-run prisons.

The Committee recalls that wherever prisoners are placed at the disposal of private companies only work performed in conditions of a free employment relationship can be held to be compatible with the prohibition of the Convention; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the relationship being regarded as a free one.

The Committee hopes that the Government will provide detailed information on measures taken or envisaged to ensure the observance of the Convention.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments regarding the privatization of prisons and work performed by prisoners or detainees, the Committee notes the information provided by the Government in its report.

The Committee notes that the Criminal Justice Act, 1991 assented on 26 July 1991, provides that certain prisons may be contracted out by contract between the Secretary of State and another person (section 84); such prisons are run by a director appointed by the contractor and approved by the Secretary of State, and controlled by a Crown servant appointed by the Secretary of State (section 85). The Committee notes the Government's information in its report that the Act enables the Government to seek tenders from the private sector for the management of the new remand prisons; the first contract was signed in November 1991 for a period of five years and was to become operational in April 1992. It relates to the remand prison of Wolds which can accommodate 300 untried or unsentenced prisoners; it is estimated that at any time there will be around 50 convicted but unsentenced prisoners.

The Committee also notes the Government's indication in its report that under the prison rules, unconvicted prisoners cannot be required to work, but that for convicted prisoners work is compulsory. At Wolds work will apply to domestic requirements and to a small area of the prison designated as a multi-skills workshop. Prisoners will receive pay and the work will provide training for prisoners choosing to participate.

The Committee further notes the Government's indications concerning control, discipline, inspection and monitoring; in this connection the Committee notes that the Chief Inspector, independent of the prison service, establishes an annual report on conditions in and running of prisons.

The Committee requests the Government to provide detailed information on the number of prisons contracted out and of prisoners concerned, the wages paid in relation to the normal minimum wages applicable in the different work sectors and other details on social security benefits and on deductions made from pay. The Committee also requests the Government to supply a copy of the annual report of the Chief Inspector of Prisons concerning prisons contracted out.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in its report. It requests the Government to provide in its next report detailed information concerning any measures taken or contemplated with a view to the privatisation of prisons and facilities used for the detention of persons awaiting trial, particularly with respect to work performed by prisoners or detainees in such institutions, including information on the legal framework for such work, the type of work done, the wages paid and other details of remunerative and social security benefits, and any deductions made from pay.