Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee has noted the information supplied by the Government in reply to its earlier comments. It has also noted a communication dated 24 October 2005 received from the Trades Union Congress (TUC), which contains the TUC’s response to the Government’s report, as well as a communication dated 29 August 2006, whereby the International Confederation of Free Trade Unions (ICFTU) (currently the International Trade Unions Confederation – ITUC) submitted comments on the application of the Convention by the United Kingdom. The Committee notes that these communications have been forwarded to the Government for any further comments it might wish to make and hopes that such comments will be supplied by the Government with its next report.

Article 1(1) and Article 2(1) and (2)(c) of the Convention. Privatization of prisons and prison labour. Work of prisoners for private companies. In its earlier comments concerning the privatization of prisons and work of prisoners for private entities, the Committee pointed out that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in the sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers (including privatized prisons and prison workshops), even under public supervision and control. The Committee has previously asked the Government to take the necessary measures in order to ensure that, with regard to contracted-out prisons and prison industries, any work by prisoners for private companies be performed under the conditions of a freely consented upon labour relationship, without the menace of any penalty and, given their conditions of captive labour, subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Government reiterates its view that its approach to the work of prisoners for private entities is in line with the aims of the Convention. It states that there is no real difference between supervisory arrangements for public and private prisons in the United Kingdom, where prison officers serving in private prisons have to be licensed by public authorities. The Government indicated previously that it could see no justification for requiring different systems of employment for public or private sector work in prisons, where adequate safeguards against abuse are in place. The Committee notes, however, that these views have again been rejected by the TUC in its response to the Government’s report contained in the communication referred to above. The TUC has also expressed the view that the supervisory arrangements in private prisons do not amount to the level of public supervision required by the Convention for such work: while prison officers employed by private companies have to be licensed by the public authorities, that does not amount to day-to-day supervision of prisoners’ work by the public authorities.

While having noted these views and comments, the Committee recalls that the privatization of prison labour transcends the express conditions provided in Article 2(2)(c) of the Convention for exempting compulsory prison labour from the scope of the Convention. By virtue of this provision, compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if 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”. Both these conditions are necessary for compliance with the Convention: if either of the two conditions is not observed, the situation is not excluded from the scope of the Convention, and compulsory labour exacted from convicted persons under these circumstances is thus prohibited. In other words, the two conditions apply cumulatively: i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely, that the person is not “hired to or placed at the disposal of private individuals, companies or associations”.

As the Committee pointed out in paragraph 106 of its General Survey of 2007 on the eradication of forced labour, the prohibition for prisoners to be placed at the disposal of private parties is absolute and not limited to work outside penitentiary establishments, but applies equally to workshops operated by private undertakings inside prisons; therefore, it applies to all work organized by privately run prisons. Consequently, the privatization of prisons and/or of prison labour is only compatible with the Convention where it does not involve compulsory labour. Thus, in order to comply with the Convention, the work of prisoners for private companies requires the freely given consent of the persons concerned. The Committee has considered that, in the context of a captive labour force having no alternative access to the free labour market, the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may also be other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed, such as the learning of new skills which could be deployed by prisoners when released, the offer of continuing work of the same type upon their release, or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills. The Committee has indicated that all of these factors should be taken as a whole in determining whether consent was freely given and informed; they also should be considered and assessed by the public authorities (see paragraphs 59–60 and 114–120 of the Committee’s General Survey of 2007 referred to above).

The Committee is of the opinion that, in spite of the express prohibition for prisoners to be hired to or placed at the disposal of private parties under the terms of the Convention, it is fully possible for countries to apply the Convention when designing or implementing a system of privatized prison labour, once the abovementioned requirements are observed. Noting the Government’s confirmed willingness to cooperate with the ILO on this matter, the Committee requests that the necessary measures be taken so as to ensure that free and informed consent is required for the work of prisoners in privately operated prisons in accordance with the factors outlined by the Committee as set out above.

In particular, the Committee requests the Government to provide, in its next report, information:

–           on the action taken to ensure that the informed written formal consent to perform work is obtained from such prisoners without the menace of any penalty;

–           on the action taken to ensure that such formal consent is authenticated by the existence of objective and measurable factors such as the prisoners performing work in conditions approximating a free labour relationship, together with other advantages such as learning of new skills which could be deployed when released; the offer of continuing work of the same type upon release; or the opportunity to work cooperatively and develop team skills, or other similar factors;

–           on the objective and measurable factors which are to be taken into account by public authorities in order to ensure that voluntariness of the consent is authenticated;

–           on the procedures undertaken by public authorities to regularly assess that such objective and measurable factors are in place in order to ensure that work performed by prisoners is voluntary.

Articles 1(1) and 2(1). Trafficking in persons for the purpose of exploitation. Referring to its earlier comments, the Committee has noted with interest the comprehensive information provided by the Government on measures taken to combat trafficking in persons for the purpose of sexual and labour exploitation. It has noted, in particular, the adoption of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, which criminalizes trafficking for labour exploitation, the Sexual Offences Act, 2003, which has reinforced provisions covering trafficking for the purposes of sexual exploitation, as well as the Gangmasters (Licensing) Act, 2004, and the Gangmasters (Licensing Authority) Regulations, 2005, which establish a system of licensing and registration of labour providers operating in the agriculture, shellfish-gathering and associated processing sectors. It has also noted with interest that the Government is participating in a project launched by the ILO Special Action Programme to combat Forced Labour (SAP-FL), which focuses on the forced labour dimensions of trafficking in selected European “source” and “destination” countries. Finally, the Committee has noted the establishment in 2004 of an interdepartmental Ministerial Group on Human Trafficking to ensure maximum effectiveness of the work undertaken by the Government to prevent, disrupt and prosecute trafficking and support victims, as well as a project called “the POPPY Scheme” aiming at the supporting of enforcement action, including prosecution and disruption of trafficking activity. Noting the Government’s indication in the report that the scheme is currently being evaluated, the Committee hopes that the Government will provide information on the results of its evaluation, particularly as regards the efficiency of prosecution, punishment of the offenders and victim protection measures.

In its previous comments, the Committee referred to the observations by the TUC concerning the situation of workers from abroad who fall victim to trafficking and find themselves in conditions which would amount to forced labour, in which the TUC expressed the view that a fundamental weakness in the existing law and regulations remains that workers who denounce these practices, and in particular if they leave that employment, may find themselves at great risk of deportation. In its latest communication referred to above, the TUC again expresses its concern with the fact that there is a great risk that deported trafficked workers may be delivered back into the hands of the criminal gangs that trafficked them in the first place and thus may be trafficked yet again. In the TUC’s view, an essential component of effective victim protection is the right of liberated trafficked workers to stay in the United Kingdom rather than be deported to their country of origin or the last country of residence.

The Committee previously noted the Government’s indication in its 2002 report that there was already provision for victims of trafficking to be granted exceptional leave to remain in the United Kingdom and that, in the Government’s view, these arrangements were best considered on a case-by-case basis, since any blanket grant of residency is open to abuse and may create a perverse incentive for traffickers to exploit more victims, by suggesting that they will be granted residency if they are trafficked. The Committee has noted the Government’s detailed explanations in its 2005 and 2007 reports concerning a grant of humanitarian protection, discretionary leave or leave outside the immigration rules, which, in the Government’s view, allows a fully flexible approach to be applied. While having noted these explanations, the Committee would appreciate it if the Government would provide information on how these arrangements work in practice, as well as information on any further measures taken or envisaged to protect the victims of trafficking. In particular, please provide information on the implementation of the UK Action Plan on Tackling Human Trafficking, as well as information on the activities of the UK Human Trafficking Centre referred to in the Government’s latest report.