Rights and wrongs of prison labour laws explored in new ICPR briefing
Ben Jarman
9th November 2023
ICPR’s new briefing paper, “Labouring Behind Bars”, explores work in prison through the lens of international human rights law. This is the first of a series of publications in the project ‘Unlocking potential: towards effective, sustainable, and ethical provision of work opportunities for prisoners and prison leavers’.
The briefing—along with a detailed Appendix—assesses and critiques the applicable law and highlights the outdated nature of key binding norms governing prison work. It also identifies gaps between claimed benefits and actual prisoner work conditions. It assesses the existing international legal framework, revealing conceptual gaps and inconsistencies across standards. These gaps, we suggest, may result in prisoners being exploited in ways unforeseen by the framers of international laws.
Gaps and inconsistencies in human rights standards
Key provisions on prison labour originate from International Labour Organisation (ILO) conventions signed in 1930 and 1957. These Conventions exempt prisoners convicted of a crime from protection against forced labour, allowing states to compel them to work. In most countries, prisoners lose their employment rights, including minimum wage laws and other protections. However, prisoners working for private interests must do so voluntarily and be supervised by state authorities.
These Conventions remain crucial in preventing large-scale exploitation, with around 3.9 million people globally estimated by the ILO to be subjected to forced labour imposed by states, with forced prison labour accounting for over half of this estimated figure.
The ILO framework creates a sharp divide between ‘public’ and ‘private’. Compulsory and unpaid work by prisoners for states and public entities is permissible, while work for non-public entities must be voluntary and offer conditions—including on pay—approximating those available to free workers. Some ILO member states find this distinction impractical, on the basis that it creates barriers to involving private sector and voluntary sector organisations in providing work opportunities to people in prison.
Non-binding standards, such as the UN’s Nelson Mandela Rules and the Council of Europe’s European Prison Rules, expect prisoners to be prepared for release through work, and also expect work to be remunerated and subject to health and safety and other protections.
Do prison labour laws hinder better work provision?
Despite the many potential benefits of providing prisoners with decent work opportunities, in reality many prison jobs are low-paid (or unpaid), unskilled, and focused on prison maintenance rather than long-term outcomes. Opportunities to do work offering meaningful prospects of post-release employment are limited, especially for long-term prisoners.
Many countries publish policies aiming to promote the involvement of outside partner organisations, aiming to improve the work opportunities available to prisoners. Such partnerships come in various forms, for example vocational training, paid work on day release, or profit-making prison factories. They can also involve numerous non-state actors: private companies, charities, social enterprises. The financial flows involved may be multidirectional: some extract profits from prison labour, while others deploy philanthropic or taxpayer funding to invest in prisoners’ skills. There are a range of potential benefits, and not all of these possibilities appear to create the same risk of exploitation.
Yet all of these, in the Conventions’ terms, are forms of ‘private’ prison labour; that is, they are all swept up under the same definition, and treated as potentially equally exploitative. This fails to reflect the diversity in the structures surrounding prison work. Meanwhile, some state practices that use prisoner labour for cost reduction or to fulfil public sector internal market production contracts escape scrutiny.
A dispute has been brewing between the ILO and some member states—including the UK—on how work in privately operated prisons should be treated under the Conventions. The ILO sees private companies operating prisons as exploiting forced prison labour, on the basis that they profit from contracts without paying minimum wages. Some member states argue that private prisons should be allowed to require prisoners to work without market-rate pay, since the company works on behalf of the state.
This disagreement creates a confusing regulatory system that limits opportunities for outside partnerships while leaving prisoners exposed to forms of exploitation that are not excluded by the existing law.
Questions posed by the briefing paper
There are many reasons to hope that more work of higher quality could be made available to prisoners, including strong evidence of correlations between post-release employment and reductions in reoffending. It is desirable that prisoners should have opportunities to do meaningful and rewarding work while in custody, and to receive support into employment following release.
The overarching argument of our briefing paper is that the outdated legal framework offers uneven and inconsistent protections against exploitation, and creates obstacles to partnerships which could promote meaningful skill training and employment preparation. A more coherent set of standards is needed to resolve these problems. Key questions to be addressed include:
- What constitutes fair pay for prison work? Should it be tied to minimum wages outside prison?
- How can work opportunities in prison be expanded for prisoners further from release?
- What incentives could legitimately encourage business involvement in providing rehabilitative skills training and employment connections?
- Should protections against coercion and exploitation depend on whether work is for public or private entities?
We look forward to engaging with stakeholders on these questions in the months ahead. Follow ICPR and the World Prison Brief on X to stay informed about upcoming publications and events on this project.