Select Committee on Home Affairs First Report



Prison Rules 1999[327]

31(1)   A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another.

(2)  The medical officer or a medical practitioner such as is mentioned in rule 20(30) may excuse a prisoner from work on medical grounds, and no prisoner shall be set to do work which is not of a class for which he has been passed by the medical officer or by a medical practitioner such as is mentioned in rule 20(3) as being fit.

(3)  No prisoner shall be set to do work of a kind not authorised by the Secretary of State.

(4)  No prisoner shall work in the service of another prisoner or an officer, or for the private benefit of any person, without the authority of the Secretary of State.

(5)  An unconvicted prisoner shall be permitted, if he wishes, to work as if he were a convicted prisoner.

(6)  Prisoners may be paid for their work at rates approved by the Secretary of State, either generally or in relation to particular cases.

International Labour Convention Concerning Forced Labour[328]

The International Labour Organisation (the "ILO") Convention Concerning Forced Labour (the "Forced Labour Convention") is one of the ILO's eight core standards protecting fundamental human rights. Convention 29 entered into force in 1932 and is the most widely ratified ILO Convention with over 156 State parties.

The principle objective of the Forced Labour Convention is "to suppress the use of forced or compulsory labour in all its forms within the shortest possible period."[329] The Convention specifically exempts five forms of forced or compulsory labour from the otherwise absolute prohibition on its use, including prison labour. Prison labour is defined in the Convention as

    "any work or service exacted from a person as a consequence of a conviction in a court of law, provided 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, corporations or associations."[330]

When the International Labour Conference adopted the Forced Labour Convention in 1932, it debated and rejected a proposal that would have allowed the use of forced labour in public works carried out by private undertakings. Thus, the conditions in Article 2(2)(c) are also "important guarantees against the administration of the penal system being diverted from its true course by coming to be considered as a means of meeting labour requirements."[331]

The ILO Committee of Experts stated in 2001 that "it is at the heart of all the exemptions that if forced labour is exacted then the beneficiaries should not be private entities but the public."[332] The ILO Committee of Experts has explained that the reason for the requirement of public supervision contained in Article 2(2)(c) is

    "to prevent the conditions under which prisoners work being determined otherwise than by the public authorities, in a situation in which the workers concerned do not enjoy the rights of free workers. The supervision of the public authorities is therefore required to ensure that conditions remain within acceptable limits."[333]

The potential incompatibility between the reformative aims of the State and the business interests of the private entity justifies public supervision and control of prison labour. It is also intended to ensure that a broad public benefit derives from any forced prison labour rather than a merely private benefit.

Article 2(2)(c) prohibits forced prison labour for private benefit. It does not however prevent voluntary prison labour for private benefit.[334] Two general conditions must be met to demonstrate "voluntariness":

    (i) the formal consent of the person concerned.

    (ii) in 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.[335]

The option to work must be a true option and not one in which the alternative to the provision of work is a detriment.[336] Work performed by a prisoner whose alternative is, for example, confinement to cells, is "work or service exacted under the menace of …penalty" within the meaning of the Forced Labour Convention. So too is work performed where the prisoner's good performance at work might be taken into account to reduce sentence, even where refusal to work could not be taken into account to lengthen sentence.[337]

European Convention on Human Rights and Fundamental Freedoms

Article 4(3) of the European Convention on Human Rights excludes 'any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention' from the term 'forced or compulsory labour'.

327   Statutory Instrument 1999/728 which came into force on 1 April 1999. Back

328   International Labour Convention (No. 29) Concerning Forced Labour was adopted on 28 June 1930 by the General Conference of the International Labour Organisation at its fourteenth session and came into force 1 May 1932 in accordance with Article 28. Back

329   ILO Forced Labour Convention, Article 1(1)  Back

330   ILO Forced Labour Convention, Article 2(2)(c) Back

331   ILO, General Survey on the Reports concerning the Forced Labour Convention 1930 (No 29) and the Abolition of Forced Labour Convention 1957 (No 105), International Labour Conference (1968) Back

332   ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations [hereafter CEACR], International Labour Conference (2001) Back

333   ILO, Report of the CEACR, International Labour Conference (1998) Back

334   ILO, Report of the CEACR, International Labour Conference (1955) Back

335   ILO, Report of the CEACR, International Labour Conference (1994) Back

336   ILO, Report of the CEACR, International Labour Conference (2001) Back

337   ILO, Report of the CEACR, International Labour Conference (1996) Back

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