Observación (CEACR) - Adopción: 1997, Publicación: 86ª reunión CIT (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.