ANNEX 7
LEGAL REGULATION OF PRISON WORK
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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