Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Royaume-Uni de Grande-Bretagne et d'Irlande du Nord (Ratification: 1931)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Royaume-Uni de Grande-Bretagne et d'Irlande du Nord (Ratification: 2016)

Autre commentaire sur C029

Observation

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The Committee notes the Government’s report as well as the observations received from the Trades Union Congress (TUC) on 1 September and 19 September 2016.

Articles 1(1), 2(1) and 25 of the Convention Suppressing all forms of forced labour, including trafficking in persons. Legal and institutional framework. Referring to its previous comments, the Committee takes note of the information in the Government’s report relating to the adoption of the Modern Slavery Act 2015. It notes with interest that the Act strengthens the legal framework to combat all forms of forced labour by defining and criminalizing slavery, servitude, forced or compulsory labour and human trafficking as well as by increasing the applicable penalties. In particular, the Act provides for the establishment of an Independent Anti-Slavery Commissioner whose role is to encourage good practice in the prevention, detection and prosecution of modern slavery offences and the identification of victims. It also strengthens the powers of law enforcement authorities by, inter alia, allowing the Courts to make prevention orders, to decide on the confiscation of assets, or to make slavery and trafficking reparation orders against offenders to compensate the victim for any harm resulting from the offence. It also enhances legal support for victims and introduces a defence from being detained, charged and prosecuted for offences committed during exploitation. Finally, the Act requires commercial organizations to disclose a slavery and human trafficking statement for each financial year indicating what they are doing to eradicate modern slavery from their organization and their supply chains.

The Committee also notes with interest the adoption of the Human Trafficking and Exploitation (Scotland) Act 2015, which creates a single offence for all forms of exploitation and increases the maximum penalty, as well as the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which bring together new offences in a single piece of legislation, giving equal weight to trafficking in persons and slavery-like offences. Both Acts contain provisions similar to those of the Modern Slavery Act concerning new law enforcement tools and powers. The Government indicates that, pursuant to the adoption of these Acts, the Northern Ireland Department of Justice adopted an annual strategy to raise awareness of modern slavery offences, underpinned by four strategic priorities (prosecution, protection and support, prevention and partnership) and that the Scottish authorities are working alongside a variety of stakeholders to finalize a trafficking and exploitation strategy.

The Committee notes that the Independent Anti-Slavery Commissioner, whose mandate covers the whole of the United Kingdom, has adopted a Strategic Plan for 2015–17, which focuses on five priorities: (i) improved identification and care of victims; (ii) improved law enforcement and criminal justice response; (iii) promoting best practice in partnership working; (iv) promoting private sector engagement to encourage supply chains’ transparency; and (v) encouraging international collaboration. In his first report, the Independent Commissioner highlights achievements and makes specific recommendations in relation to the abovementioned priorities. The Government indicates that it is considering the Independent Commissioner’s recommendations and working with the partners across law enforcement and criminal justice agencies to improve the response to modern slavery. The Government also provides information on the creation of the national taskforce to tackle modern slavery.

The Committee takes due note of the measures taken to strengthen the legislative and institutional framework to combat all forms of forced labour, which bear witness to the Government’s commitment in this regard. The Committee encourages the Government to pursue its efforts and to supply information on the implementation of the Strategic Plan of the Independent Anti-Slavery Commissioner as well as on the strategies adopted by Northern Ireland and Scotland, and on the results achieved. Please also provide information on the activities carried out by the National Taskforce as well as information on any evaluation undertaken of the policies pursued, on obstacles identified and on the measures taken or envisaged to overcome them.

Application of effective sanctions. The Committee notes the information in the Government’s report that, in 2015, 289 modern slavery offences were prosecuted and there were 113 convictions for modern slavery offences (compared to 253 prosecuted offences and 108 convictions in 2014). In his report, the Independent Commissioner points out to weaknesses in modern slavery crime recording by police forces in England and Wales leading to investigations that were not being instigated. This directly results in fewer prosecutions and convictions, and thus creates an environment where criminals can often operate with impunity. As a result, the Independent Commissioner has arranged for the funding and development of training programmes for judges and police officers, in particular focussing on how cases may be successfully prosecuted. In this regard, the TUC considers that one important causal factor of the low number of prosecutions and convictions is insufficient police capacity and resources. The TUC observes that a number of important tasks for implementing the Modern Slavery Act are assigned to the police, for which they do not have the capacity to deliver. The Committee requests the Government to continue to take measures to strengthen the training and capacity of law enforcement bodies in relation to the new legal framework adopted to combat modern slavery and the tools contained therein so as to improve the identification of cases, ensure that adequate investigations are undertaken and that sufficiently effective and dissuasive penalties are applied to perpetrators. It requests the Government to continue to provide information on the number of investigations, prosecutions and convictions.

Protection and assistance for victims. The Committee notes the Government’s indication that the Home Office has estimated that there are up to 13,000 potential victims of modern slavery. Support to potential victims is provided through the National Referral Mechanism (NRM) for a period of 45 days. The assistance is granted through contracts with NGOs after the potential victim has undergone an initial needs-based assessment. The Committee also notes the information concerning the assistance provided by Northern Ireland after the recovery period and the intention to extend the scope of the NRM to cover potential victims of slavery and forced labour. The Committee observes that, in his report, the Independent Commissioner states that, in 2015, 3,266 potential victims were referred to the NRM compared to 2,340 in 2014. While welcoming this increase, he observed that significant numbers of victims are not being identified and therefore remain unprotected in situations of abuse and exploitation. He also stressed the need to ensure that victims receive support tailored to their individual and complex needs. In its observations, the TUC acknowledges that the growing numbers of NRM referrals suggest improvements in awareness. However, the TUC indicates that victims report difficulties in accessing the services they are entitled to. It also refers to discriminatory and differential decision making based on the nationality of the victim and points out that the evaluation of the functioning of the NRM needs to be comprehensive and that any revision made be in the interest of the victims. The Committee requests the Government to strengthen its efforts to provide protection and assistance, including legal assistance, to victims of forced labour so that they are in a position to assert their rights, including their labour rights. It also requests the Government to continue to provide information on the measures taken in this regard, as well as the number of persons benefiting from such services.

Article (2)(c). Privatization of prisons and prison labour. Work of prisoners for private companies. For a number of years, the Committee has been requesting the Government to take the necessary measures to ensure that formal, 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.

The Committee notes the Government’s indication in its report that there has been no change in the Government’s position and that it continues to be of the view that its approach to imprisonment and rehabilitation is fully in line with the aims of the Convention. The Government considers that work in prisons falls within the exception provided for in the Convention since public sector supervision and control of prison work carried out in both public and private sector prisons is ensured. The Government once again refers to rigorous, independent inspections of private workshops and prisons; the strong legislative framework that protects working conditions of prisoners and prevents them from being exploited; and their access to effective systems for complaints. The Government adds that work in prisons continues to grow steadily and that it continuously explores possible new models for increased work in prisons, including through employers opening employment academies within prisons; call centres where companies provide experienced staff to instruct the prisoners so that they operate as close to the commercial conditions found in the community and provide real work experience; and employers providing valuable vocational work for offenders and offering them support in preparation for release and employment opportunities following their release. The Government also reiterates that rehabilitation has been retained as the primary purpose of the work and if it accepts the interpretation of the Convention by the Committee, work by prisoners in a number of prisons in the country would no longer be viable, and that this would be damaging for prisoners and their rehabilitation.

The Committee notes with regret the Government’s indication that there has been no change in its position. While acknowledging the objective of rehabilitation pursued by the Government in providing work to convicted prisoners, the Committee is bound to reiterate that the privatization of prison labour exceeds the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. Consequently, the work of prisoners for private companies is only compatible with the Convention where it does not involve compulsion, which requires the formal, freely given and informed consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as the level of wages, the extent of social security, and the application of regulations on safety and health. As the Committee has repeatedly pointed out, in spite of the express prohibition for prisoners to be hired or placed at the disposal of private parties under the terms of the Convention, it is nevertheless fully possible for governments to apply the Convention when designing or implementing a system of privatized prison labour, once the abovementioned requirements are complied with. Therefore, the Committee urges the Government to take the necessary measures to ensure that formal, 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, with such consent being authenticated by the conditions of work approximating those of a free labour relationship.

Follow-up to the recommendations of the tripartite committee (representation under article 24 of the ILO Constitution)

The Committee recalls that in November 2015 the Governing Body adopted the report of the tripartite committee set up to examine the representation submitted by the trade unions UNISON, GMB and Napo alleging non-observance of the Convention. The tripartite committee requested the Government to ensure that work imposed on persons sentenced to unpaid work requirements remained within the limits of the exception to forced labour provided for in Article 2(2)(c) of the Convention. The tripartite committee observed that the Secretary of State had made contractual arrangements with privately owned community rehabilitation centres (CRCs) for the execution of probation services, including unpaid work requirements. While being privately owned, the CRCs carry out public functions on behalf of the State. CRCs are in charge of placing offenders with providers to perform community work; they are not the beneficiaries of the product of the work carried out; and the work undertaken by offenders is carried out in the general interest of the community. Considering the involvement of private entities in the process of managing this penal sentence, the tripartite committee was of the view that there needed to be safeguards in place in terms of monitoring the circumstances in which the work is performed so as to ensure that the compulsory work actually performed was in the general interest; that the arrangements in place did not result in the private provider placing offenders in compulsory work for profit-making entities; and that private providers were paid solely in accordance with the financial terms of the contract concluded and that they made no benefit from the unpaid work undertaken by offenders.

The Government indicates that the CRC contracts are subject to robust contract management procedures and governance arrangements. The contractor is required to disclose details of all income that exceeds the cost of providing unpaid work; to demonstrate how it has reinvested that income in the provision of the services; to disclose its delivery models and the amount of income generated by outsourcing unpaid work to a subcontractor; and to demonstrate that it will not profit directly from unpaid work. The Government also provides a report from the CRCs Contract Management Group of the National Offender Management Service (NOMS) which indicates that NOMS is assured by the evidence provided that all 21 CRCs ensure offenders can access public complaint mechanisms effectively; that the CRCs do not profit directly from the provision of unpaid work; and that work undertaken is in the public interest. There are examples of CRCs setting up of community interest companies and an investment fund for offenders to appropriately manage income generated.

In its observations, the TUC disputes the Government’s argument that private companies which are delivering unpaid work under contract on behalf of the Secretary of State are actually public authorities. To support its position, the TUC refers to and analyses various pieces of legislation and considers that it does not arise from the analysis that CRCs are public authorities. It also indicates that there is no case law to support the Government claim that CRCs are recognized and treated as public authorities and CRCs have not yet been subject to an application for judicial review.

The Committee notes this information. It observes that unpaid work requirements are imposed without offenders giving their consent to such sentences. As a form of compulsory work imposed as a consequence of a judicial decision, its performance must remain within the limits of the exception to forced labour provided for in Article 2(2)(c) of the Convention. Consequently, the Committee requests the Government to continue to ensure that the work performed under unpaid work requirements is adequately monitored; that CRCs are subject to the regular scrutiny of the public authorities; and that compulsory work performed under a sentence of unpaid work requirements is not undertaken for private entities. Please provide concrete and detailed information on the control and supervision carried out to ensure that CRCs do not benefit from the income generated by outsourcing unpaid work and that the work is genuinely in the general interest, as well as on any complaints lodged by the offenders.

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