Image by coombsey from Michael4Wien
While there has been important critical analysis of prison labour and work in immigration detention, other aspects of work of offenders have been less frequently documented. My focus in this piece is on ‘unpaid work requirements’ and my aim is twofold: first, to present the issue and highlight a recent complaint of forced labour submitted to the ILO by the Trades Union Congress (TUC) on behalf of UNISON, GMB and NAPO; second, to place the problem in a broader theoretical framework that I have described as state-mediated structures of injustice. This emphasises the systematic nature of the wrong.
‘Unpaid work requirements’ are requirements that can be imposed by a court under part 9 of the Sentencing Act 2020 (formerly under the Criminal Justice Act 2003) to those who are sentenced for a criminal offence, are over 18 years old and their offence is punishable with imprisonment. These can range between 40 and 300 hours of work, and are also known as ‘community payback’. The work involves tasks that are beneficial to the community, including environmental conservation, decorating buildings, recycling and working directly with local charities. Community sentences are given for offences such as damaging property, benefit fraud or assault. According to the Justice Select Committee Report ‘Transforming Rehabilitation’, the purpose of using these as part of a sentence is said to be the offender’s punishment, reparation to the community, increased public confidence towards criminal justice and reduced chances of reoffending.
Until 2012, the unpaid work requirements were supervised by public sector Probation Trusts. The role of Probation Trusts in this context was crucial: they liaised with local communities to plan the work, advised the courts on suitability of the individual for work, directed and supervised the work etc. In 2012, following the publication of a consultation paper entitled ‘Punishment and Reform: Effective Probation Services’, the Government decided to outsource to the private sector the supervision, monitoring and delivery of unpaid work requirements through a competitive process. The only activity that was kept for the probation services was the provision of assistance to courts, with the rest of the functions that were previously led by probation services to be privatised.
In the Ministry of Justice policy paper ‘Transforming Rehabilitation: A Revolution in the Way We Manage Offenders’ it was explained:
‘We propose to introduce a widespread programme of competition, and invite providers from the private and voluntary sectors to bid to deliver the majority of current probation services. We will award contracts to those providers who demonstrate that they can deliver efficient, high quality services and improve value for money. The recent competition to run Community Payback services in London demonstrated this potential.’
The contract for London was initially awarded to Serco. Serco is a private company that makes profit from running several UK public services and has been implicated in several scandals (see also the piece ‘Serco: Rewarding Failure?’). From February 2015, the running of unpaid work requirements was privatised across the whole of England and Wales via the 21 Community Rehabilitation Company contracts. The privatisation of probation services has received some critical coverage in the press and was the subject of a devastating Report of the National Audit Office in 2019, which explained that it had failed in every respect, including the quality of probation services. The Government acknowledged this in its Strengthening Probation, Building Confidence – Response to Consultation (p 12).
This failure cannot have come as a surprise to anyone. There were many warnings. For instance, already in 2014 the Howard League for Penal Reform said that Serco and G4S should be barred from bidding for Government business while a major fraud investigation into their practices was ongoing.
The privatisation of unpaid work requirements in the UK was the subject of a representation to the International Labour Organisation Committee of Experts on the Application of Conventions and Recommendations. The complaint was submitted by trade unions UNISON, GMB and NAPO. The original ILO referral involved the original London Serco contract but with subsequent developments, it became a referral in respect of all the Community Rehabilitation Company contracts as a whole. The unions claimed that the privatisation of the scheme was in breach of the ILO Forced Labour Convention No 29 (1930) that the UK has ratified.
Article 2(1) of the Convention says that ‘forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.
Article 2(2) provides for certain exceptions, the relevant one for present purposes being the following:
‘(c) any work or service exacted from any 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, companies or associations.’
There is no question that the work that the offenders do as unpaid work requirements is forced labour: they do not offer themselves voluntarily, they are not asked to consent to performing the work and are not paid; if they do not do the work, other criminal sanctions will follow. The Government accepted this and relied on the exceptions of the provision. Could it be covered by these exceptions?
The ILO says that the two conditions in article 2(2)(c) (that there should be supervision or control by a public authority and that the person should not work for private entities) have to apply cumulatively (see, for instance, the 2014 Observation on Australia). However, because in some countries there are privatised prisons, it has also developed certain safeguards to protect prisoners in these situations.
For instance, the ILO 2007 General Survey on the Eradication of Forced Labour said that in privately run prisons that exist in some countries, the question of whether working for a private entity is acceptable involves the degree to which supervision and control is actually exercised by public authorities. It continued:
Though no general prescription may be laid down which would cover all the possible arrangements for this, the Committee has considered that, if the supervision and control are restricted to a public authority to inspect the premises periodically, this by itself would not appear to meet the requirements of the Convention for supervision and control. As regards a sentence of community work, it is usually carried out under the supervision and control of public officials responsible for the execution of this kind of sentence, such as probation officers (para 53).
According to the agreements in relation to the unpaid worker requirements, there was no public supervision: the work would be controlled and supervised by a private body, Serco (and from 2015 by the 21 Community Rehabilitation Companies), and not by the Probation Trusts. It is not public authorities, in other words, but employees of Serco who exercise crucial functions such as deciding if an offender has failed to comply with an order, so as to refer them to the Probation Service that would bring them before a court.
In addition to that, and according to the agreement between the authorities and Serco, the latter could place offenders ‘at the disposal of private individuals, companies or associations’. There was no guarantee that the scheme would involve work that is of general interest; Serco could, in turn, make profit from this work. This appears to be in direct breach of the second condition of the ILO Convention, namely that the offender should not be placed at the disposal of private enterprises. However, as again here there are countries where prisoners work for private enterprises (within or outside prison), the ILO refers to further safeguards that should be in place, such as formal consent to the work, wages, working conditions and social security arrangements (General Survey, para 61). These safeguards aim to protect offenders from severe labour exploitation.
In the case of the UK, both conditions of the ILO Convention appear to be breached.
The 15th Report of the Director General of the ILO in 2015 examined the complaint of the trade unions and highlighted areas of incompatibility with the Forced Labour Convention. The Committee asked the UK, inter alia, to continue ensuring that public authorities control and supervise carefully and adequately the work in question, that the work is in the general interest and not for private gain, and that the private providers do not make profit from the unpaid work of offenders, which is supposed to constitute community payback. In 2019, the TUC told the ILO that not only was there no effective state supervision of the scheme, but also that unpaid work was ‘placed at the disposal of private companies in the form of the third party profit-making beneficiaries of unpaid work’. Examples of these included work for general medical practitioner partnerships, private sector care homes, private sector nurseries, private sector sheltered accommodation, private cemeteries, and private land owners (via charitable intermediaries).
In 2020, the Government announced that it would discontinue the competitive process for delivery of probation services. However, they also emphasised that they remained committed to collaboration with the private sector in the area (see Hansard, columns 425-426). The ILO welcomed the decision, requested further information on its implementation and on how private entities will be involved in the future and what kind of general interest work offenders will be required to do.
Structures of exploitation
The discontinuation of the privatisation of the scheme is a positive development, given that this outsourcing should not have happened in the first place. However, the clear, public commitment of the Government that it will continue privatising functions that should be public is of concern and raises pressing questions about the compatibility of future steps with human rights obligations, as the ILO suggests.
Alongside prison work and work in immigration detention, it constitutes an example of what I have described elsewhere as state-mediated structures of exploitation. The term describes situations where the state creates vulnerability to exploitation through action that has an appearance of legitimacy, but which as a consequence places large numbers of people in exploitative working conditions. By saying that the state action in question has an appearance of legitimacy, I mean that the authorities can claim that the privatisation in question does not aim to exploit: it aims to make probation functions more efficient. The Secretary of State for Justice said in the recent announcement of the U-turn: ‘Our private sector prison partners will thus continue to play an important role in the custodial services sector, including as we deliver our ambitious programme of prison reforms, investing up to £2.5 billion to transform our prison estate and to create an additional 10,000 prison places’.
However, what we observe is that through these special measures, and specifically through the private running of unpaid work requirements here, the state places people (offenders for minor offences in this case) in unpaid work relationships with profit-making organisations. The work that offenders do is not paid, and this could have been justified in this case, according to ILO criteria, if it is subject to safeguards. However, it is not truly justified as there is no guarantee that it serves the public purpose that it is supposed to serve (community payback and rehabilitation). Instead, it is unpaid work that is used by profit-making organisations. In this way, the state creates structures of exploitation through which private businesses make profit.
The privatisation of offenders’ unpaid work is not compatible with the UK’s human rights obligations, as the ILO statements suggest. They may also be in breach of other human rights provisions, such as article 4 of the European Convention on Human Rights (prohibition of slavery, servitude, forced and compulsory labour) that is regularly interpreted by the ECtHR in line with ILO findings.
A key purpose of unpaid work requirements is to give back to the community. According to a report of the charity ‘Revolving Doors’, offenders who experienced the scheme said:
‘I like to feel a part of my community. You know, I grew up [x] in alcohol and drugs, you know, I struggled for years and I´ve done bad stuff in that community if you know what I mean. And for me, [unpaid work] was like, giving something back.’
They also explained that they felt that they benefited most when they could see that they offered to the community:
‘We went to schools where there were disabled children who needed special equipment to get around and we built up their playground. And the enthusiasm of us young people in doing that, we wanted to continue to do that, it really … had a really positive impact.’
It is questionable whether this purpose is met without clear and visible state involvement by way of supervision of the conditions and further safeguards. If privatised without sufficient state involvement and public safeguards, the offender may rightly feel that they are used for private profit rather than for the purpose of community payback and in order to support their rehabilitation. Trade unions, scholars, activists, the ILO and other monitoring bodies should therefore continue monitoring the situation.
Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws. This piece is based on her project ‘Structural Injustice and the Human Rights of Workers’ which is funded by the British Academy through a Mid-Career Fellowship.
She benefited from comments on this piece by Michael Ford QC, Ben Priestley and Bruce Robin of UNISON and Stephen Russell of TUC, as well as the blog co-editors. She is grateful to TUC, UNISON, GMB and NAPO for giving her access to their submissions to the ILO.