Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (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.