Abstract
In Sweden there is no minimum wage legislation. Wages for 88% of workers are governed by collective agreement, and for the remainder, they are set by individual employment contracts. The lowest wage levels in collective agreements for adults were about SEK 19,000 in 2022, and the median wage was about SEK 34,200, which corresponds to SEK 119 and SEK 214 per hour, respectively. Wages not set by collective agreement or employment contract are supposed to be ‘reasonable’. A reasonable wage is a wage in line with the level laid down in the sectoral collective agreement. Incarcerated workers earn SEK 13 an hour in Sweden. They are not categorised as workers, however, and therefore are not covered by labour law or collective agreements. But the products of their work – goods and services – are either sold on the open market or used for the benefit of the Swedish Agency for Prisons and the Probation Service, as the services or goods do not have to be bought on the open market. Such low pay would be considered unreasonable for any other work. However, work has been a central aspect of serving time in Swedish prisons for a very long time. Over time, such work has been motivated and governed by different principles and aims, such as the work-first principle, meaning, i.e., that work is both a societal duty and a right, and the aim of disciplining the incarcerated workers for internal and external purposes (resocialisation). The rehabilitative aspect of work has been emphasised. Proposals to raise the pay level have been rejected as being too expensive and counteracting the rehabilitative function of serving time in prison. This article seeks to explain the perceived rationale behind this state of affairs and to bring a human rights perspective into the picture and reflect on its implications.
Introduction
In a workshop located in a small community with around 2,200 inhabitants, 110 kilometres west of Stockholm, up to 110 workers are engaged in producing components for wooden houses for housing company X. Production in the workshop is high and steady. In 2022 the workshop sold products to X worth SEK 29 million. 1 In the collective agreement applicable in the sector, the minimum wage is set at about SEK 150 an hour. The workers in this workshop, however, earn a mere SEK 13 an hour. They are incarcerated workers. This article seeks to explain the perceived rationale behind this state of affairs and to bring a human rights perspective into the picture and reflect on its implications.
In Sweden, there is no minimum wage legislation. Wages for 88% of workers are governed by collective agreement, and for the remainder, they are set by individual employment contracts. 2 The lowest wage levels in collective agreements for adults were about SEK 19,000 in 2022, and the median wage was about SEK 34,200, 3 which corresponds to SEK 119 and SEK 214 per hour, respectively. Wages not set by collective agreement or employment contract are supposed to be ‘reasonable’. A reasonable wage is a wage in line with the level laid down in the sectoral collective agreement. 4 Incarcerated workers earn SEK 13 an hour in Sweden. They are not categorised as workers, however, and therefore are not covered by labour law or collective agreements. But the products of their work – goods and services – are either sold on the open market or used for the benefit of the Swedish Agency for Prisons and the Probation Service, as the services or goods do not have to be bought on the open market. Such low pay would be considered unreasonable for any other work. However, work has been a central aspect of serving time in Swedish prisons for a very long time. Over time, such work has been motivated and governed by different principles and aims, such as the work-first principle, meaning, i.e., that work is both a societal duty and a right, and the aim of disciplining the incarcerated workers for internal and external purposes (resocialisation). 5 The rehabilitative aspect of work has been emphasised. Proposals to raise the pay level have been rejected as being too expensive and counteracting the rehabilitative function of serving time in prison.
The article is structured as follows. The current regulation of work in prisons as well as the organisation of the work will be described. This is followed by an overview of how the legislator has looked upon the role of work in prisons since the Second World War, and how working conditions have been dealt with. The period is divided into four subperiods, each with specific characteristics. The present arguments against market-based remuneration will then be scrutinised, based on norms adopted within the Council of Europe. The article ends with a summary and conclusions.
How work in prison is organised and regulated
The Swedish Agency for Prisons and the Probation Service (PPS), as instructed by the Government, governs the operation of prisons and custody. Those instructions include the right to provide goods and services produced mainly by the inmates for a fee. The PPS may decide the amount of such fees and dispose of the income. 6 The work is organised by the PPS body, KRIMProd. 7 Some 50% of the costs associated with such work must be covered by the income it brings. 8 When setting prices, the PPS must take market prices into account and may not compete with similar operations on the outside. 9 However, questions have at times been raised whether clients of KRIMProd can gain an unfair advantage from the prices set. 10 The work primarily consists of assembly and packaging, and different forms of production such as in agricultural, textile and timber industries. It can also be service work, such as cleaning work done by inmates on the wing or work in the prison kitchen. 11
According to the Act on Imprisonment, a prisoner in Sweden should be offered work or some other form of occupation, such as education, training, programmes for crime prevention or other forms of structured activity, for 30 to 40 hours a week. 12 The inmates have both a right to work and/or to other forms of occupation and an obligation to participate in the assigned activities. 13 It is the PPS that decides what the assigned activity should be. If assigned work, it is mandatory to do it, and any refusal to work is sanctioned. 14 If the inmate repeatedly refuses to perform the assigned activity, it may lead to warnings and postponement of parole. 15 If the inmate is disruptive or refuses to follow orders and thereby prevents performance of the relevant activities, the assigned work is not regarded as such and will not be remunerated. 16
While working, incarcerated persons are not legally considered to be workers and therefore are not covered by labour law. As it is mandatory to perform an activity assigned by the PPS, the necessary voluntary component of an employment contract is considered to be lacking. 17 Only one labour-related law has been extended to cover prisoners: almost all provisions of the Act on Occupational Health and Safety also apply to prisoners’ work. Exempted from coverage are provisions on cooperation between employees and employers, such as the appointment of and tasks pertaining to occupational health and safety representatives, as well as a few provisions on work for minors. 18 Instead of extending the application of other labour laws to prisoners’ work, the PPS has adopted specific regulations on working conditions. For example, prisoners are not entitled to form or join trade unions in accordance with the Codetermination Act and, accordingly, are not entitled to corresponding collective rights, such as rights to negotiation, information and consultation, collective bargaining or industrial action. Instead, they can set up a prisoners’ council, at which they can discuss matters of common interest and consult with the prison management in a suitable manner. 19 The PPS regulation also regulates working time. Occupations may be assigned between 07.30 and 19.00, Monday to Friday, except holidays. 20 If the occupation or other situation requires it, an inmate above 18 years of age may be assigned an occupation at other times. Travelling time and 30-minute breaks are included in the hours assigned. 21 A lunch break is not included. 22 An inmate has the right to two work-free days a week, unless specific circumstances dictate otherwise. 23 Remuneration for work in prisons is SEK 13 an hour (corresponding to around £1). 24 This has not changed since 2013. 25 The pay can be higher if the inmate works more than 8 hours a day or more than 40 hours a week (SEK 19.5) and if the working time is outside standard hours (+ SEK 3 per hour). 26 Work done in prisons is not eligible for pension rights or any other work-based social security rights. 27 Laws and insurance against occupational injuries do not apply. Instead, prisoners are covered by public personnel injury protection. 28 Compared with ordinary workers, it is obvious that, besides the very low remuneration, other outcomes of the work performed by incarcerated workers differ greatly from those associated with work performed by ordinary workers.
Prisoners as workers
The role of work in Swedish society: the work-first principle
The prisoners’ obligation to work was integrated in a policy that took shape in the 1930s. Work and occupational training were seen as fundamental preconditions for successful reintegration into society. 29 When a new prison law was drafted in 1945, the work-first principle, which played a crucial role in Swedish society generally as described below, also played a crucial role in arguments on how work should be structured and organised in prisons. 30
The work-first principle has long played a central role in Swedish society. 31 This principle has two aspects. On one hand, the state implements an extensive active labour market policy. The public authorities are supposed to help people find suitable work as far as possible. Only when all avenues have been exhausted does social assistance come into play. This aspect of the principle was established in a political compromise in the 1930s. 32 It includes an obligation to foster and develop people's ability to work, even if it may be necessary to relocate or change occupation. 33 The second aspect is moral in nature and much older. People have a duty to support themselves and not be a burden on others. 34 Here, the work-first principle can be described as a structured incentive to seek work. 35 The control and disciplinary function of the work-first principle is crucial. 36 This also applies to another aspect of the work-first principle, self-help and education. Society is supposed to educate people to be morally good and hard-working. The poor should be helped to become self-supporting. 37 This aspect also reflects the idea that work is crucial for personal autonomy and therefore has a value beyond self-support. 38 The work-first principle also entails a right. It is a way of providing everyone with better living conditions and life chances through paid work. 39 The right to work is based on these assumptions. 40 The work-first principle covers rights, coercion, assistance and control. 41
The post-Second World War period
In the post-war period, productive work was upheld as a central part of prison life. 42 This is explained by the strong position of the work-first principle in Swedish society in this period, but also by the Swedish societal and economic context. 43 This was a golden age for Swedish industry. There was strong demand from abroad for Sweden's industrial products, and thus labour shortages arose. ‘All hands in society – also those of prisoners – were needed.’ 44 The intent was to rationalise and streamline prison production. New institutions were to be provided with ‘modern factory organisation’. Work was supposed to be at the centre of rehabilitation. The idea was that prisoners should be given an opportunity to adapt to a modern work environment and get used to the high intensity of working life that characterises modern business. Prisoners should be taught to adjust to an elementary work routine and recognise the importance of sticking to fixed working hours, and also learn resilience at work. 45 Work was considered to be key to rehabilitation. 46
Work was also an important aspect of normalisation. Work in prisons was supposed to be organised in line with the lives of industrial workers: ‘regular wage work was a sign of normality and thus it was “normal” to engage in this kind of activity and “abnormal” not to be’. 47 The words of a Director General of the Swedish Agency for the Prison and Probation Service reflect this: ‘None of us escape having to work hard – every one of us. Why, then, should prisoners do that?’ 48
Making work in prisons as rational and efficient as in the civilian labour market as a deliberate goal would also maximise ‘profit for the state and thus in the end contribute to the general welfare’. 49 The historian Roddy Nilsson has convincingly formulated the moral starting points: ‘to become a real citizen in the welfare state the prisoner … had to change their status from that of a receiver of welfare services to that of a worker and thus a contributor to the same welfare’. 50 In this welfare state context, ‘prisoners were supposed to work, not because they were forced to, but out of a sense of duty to society’. 51
The attempts to normalise prison industries were successful, and in the 1960s they were comparable to and part of outside industrial production. 52 Productive work was the goal, and productivity increased for a long period up to the mid-1960s. 53 In this period, the Swedish vision of prison work focused on the value it had primarily for prisoners, but also for society as a whole. 54
In the post-war era views changed on remuneration for work carried out in prisons. Previously, prisoners had received payment, not in the form of income based on work done but as a reward for diligence and orderliness, in combination with good behaviour. 55 The change from remuneration as a premium to established rates per hour was part of the ambition to normalise work in prisons. 56
When a new prison system was being considered in the 1940s, the argument against remunerating prisoners on the same basis as workers in the free labour market and letting them pay the costs of running the prisons was focused on a number of practical problems. One was that such a principle would imply that prisoners were paid very differently depending on their productivity. 57 It was suggested that a legal possibility should be included to adopt market-based wages in one particular prison for specific prisoners. 58 This was included in the law but not implemented in practice until later. 59
A market-based wage was discussed again in an inquiry in 1958. In Sweden, before the Government prepares a legislative proposal to Parliament, it appoints an inquiry with the task to investigate the issue and, if relevant, come up with a legislative proposal. This proposal is then communicated to stakeholders in society. The Government uses this material as guidance when preparing the legislative proposal. In 1958, the question was whether wages should be introduced for prison work in accordance with free labour market principles. Working prisoners would in such cases be placed on an equal footing with free workers economically. They would pay taxes and pay the cost of their food and lodgings in prison, as well as financially supporting dependants and fulfilling other economic obligations. One argument in favour of this was that prisoners were often in debt and obliged to pay alimony or damages. An ordinary wage would thus help prisoners to contribute to the economy during imprisonment and they would thereby have a better chance of reintegration into society when released. 60 Against this background the inquiry suggested that the legal position adopted in 1944 to try such an approach should be implemented. The aim should be to boost workers’ productivity, financial conditions and well-being, as well as to lower costs for social services and the PPS. If the results of the attempt were positive, they should be expanded. Such an experiment would require well-functioning structures for work. If a normal wage structure was to be applied, prisons should have access to modern workshops with suitable equipment. 61
First, according to this proposal, prisoners who had exhibited good behaviour and a sense of responsibility towards work were to be included. Secondly, prisoners’ responsibility for supporting family members was supposed to be taken into account. Selection should also be based on a willingness to work.
Wage-setting was supposed to be based on the same principles for all, although some were to receive piecework wages and others time-based wages. Differences in task complexity and qualifications for work were not to be taken into consideration. Therefore, the inquiry took the view that it would not be proper to apply the norms laid down in the relevant collective agreement strictly. It determined, however, that the wage level should be set close to the level applicable for a specific group. One such group subject to an industry collective agreement was suggested as the benchmark. The wage should thereby not be considered ‘in accordance with the collective agreement’, but should be adjusted to conditions on the regular labour market. 62 This system was not introduced until 1972, however, when it was brought in gradually in three pilot prisons. 63
At the end of the 1960s, the voices calling for societal transformation also reached the prisons. KRUM, an association with the aim of making the prison and probation service more humane, was established by people from outside the prisons. 64 A few years later, Sveriges Anstaltsarbetareförbud (SAAF, 1970) and Styrelsen för Förenade Fångarnas Centralorganisation (FFCO, 1977), were formed by prisoners. These associations called for market-based wages and claimed trade union status, without success, as the members were not considered as workers within the meaning of the law. 65
Societal transformation
From the early 1970s, the situation changed and prison production stagnated. 66 There are a variety of explanations for this, including economic stagnation. Unemployment was high and prisons found it difficult to find customers. 67 It has also been claimed that the prisoners’ struggle in the late 1960s and early 1970s for better conditions reduced the competitiveness of their output compared with labour outsourced to low-wage countries. 68
When a new Prison Act was drafted at the beginning of the 1970s, the abolition of the obligation to work was proposed, with a switch of focus to on other rehabilitation measures. In the end, however, the obligation to work remained. 69 The reasons for this were that the prisons would have to employ more personnel to guard the prisoners, costs would increase, the possibility for prisoners to engage in work on a regular basis would be lost, and many inmates would be left in a state of meaningless idleness. 70 At this point, payment for participating in education was equalised with payment for work. 71
The struggle of the FFCO and its predecessor for a market-based wage lasted the whole of the 1970s. 72 They also demanded trade union rights and that the obligation to work be abolished. Regarding the demand for trade union status, the Minister of Justice replied that the necessary contractual relationship between the FFCO and the PPS was absent. 73 The FFCO went out on strike several times to support its claims, which meant that prisoners refused to work. As a sanction, they were kept locked in their cells during the daytime, although not in the evenings. 74 They also went on hunger strikes. 75 The FFCO received support from the blue-collar trade union confederation LO, but after some hesitation LO declined to offer it membership within the confederation. 76 The protests took place throughout the 1970s, but by 1980 the climate had changed. The penalty for strike action was downgraded to a warning or a prolonged sentence. 77
In the new 1975 Prison Act, KRUM and FFCO's ideas were taken into consideration to some extent. One aim was to normalise life in prison and make it as close to outside society as possible in order to improve rehabilitation and resocialisation. 78 It was through this reform that prisoners were given a right to establish consultation bodies or prisoners’ councils, and to consult with management on questions of general interest to the prisoners. 79 The system with market-based wages was first introdcued during this period in a new model prison, Tillbergaanstalten, in 1972, 80 and in Skogome in 1975. 81
It is important to emphasise that the discussions on market-based remuneration were not based on the premise that it is reasonable that work done by prisoners be remunerated on the same basis as that done by workers on the open labour market because, in practice, they were doing the same job. Reintegration was the main motivation for making conditions more like those on the open labour market. The main purpose was to give prisoners a chance to improve their economic and social situations when released. The income earned was not freely available to the prisoners to use as they wished. Most of it was supposed to be incorporated into a detailed budget plan that dictated how the money should be used. 82 This particular aspect was criticised by the prisoners’ trade union, FFCO. 83
The appropriate level of remuneration for work in prisons was also discussed after the new Prison Law entered into force in 1975. The Swedish National Council for Crime Prevention (BRÅ) called for either a general increase in the level of remuneration or the expansion of the pilot schemes at Tillberga and Skogome. One aim was to solve the problem of heavily indebted prisoners, whose debts on the outside made it difficult for them not to reoffend when released. 84 BRÅ emphasised that the costs to society as a whole should be taken into account. 85 Another argument was that higher remuneration could stimulate the will to work and study, and thereby lower tensions in prisons. 86 Despite good results from Tillberga and Skoghome, and the Government's recognition of their value, Parliament rejected these proposals due to a lack of funding. 87
The question of whether the newly adopted Codetermination Act, which entered into force in 1976 and included the right to freedom of association for workers and employers and corresponding rights to collective bargaining, consultation and information, should be extended to working prisoners, was also discussed. This suggestion was rejected based on the argument that the relationship between working prisoners and the Prison Service was based on coercion, and Parliament found no reason to extend coverage of the law to prisoners. 88 It was decided later that the mechanisms for consultation through prisoners’ councils adopted in 1974 should also deal with matters of occupational health and safety. 89
From hero to zero: the proposal to expand the experiments with market-based remuneration
At the beginning of the 1980s an inquiry was launched by the Government to look further into the experiences from Tillberga and Skogome, to set up a similar system in a locally based prison, Vångdalen, evaluate the results and make proposals for the future. 90
According to the inquiry, while work had value in itself, for most people pay was the most important aspect. One argument for paying market-based wages in prisons is therefore that workers have a right to wages for work performed. 91 In accordance with the normalisation principle, the level of remuneration should be in accordance with levels prevailing in society. This was the first and only time this crucial rights-based argument was raised in the political discourse on this topic.
The inquiry proposed that the remuneration system for prison work should, as far as possible, be aligned with the rules applying outside. 92
The argument that collective agreements should apply to prisoners was rejected, based on the argument that prisoners are obliged to work and thus do not have the right to take collective action. 93 According to the inquiry, work in prisons was in many respects similar to that performed at Samhall (Samhall is a state-owned company that creates jobs for people with disabilities). 94 The wage system for work performed by prisoners should therefore be adapted to the relevant collective agreement. 95
Manufacturing and service work carried out by prisoners was, according to the inquiry, very similar to such work performed elsewhere. It was therefore proposed that work performed in the PPS's manufacturing workshops, in agriculture and forestry, gardening and services should have market-based remuneration. 96 However, it was noted that as not all inmates were fit for work and because of the increased costs such changes would entail, the new principles should be implemented step by step. 97
Despite the generally positive response from private and public actors, however, the Government gave the inquiry's conclusions short shrift. It conceded that a market-based wage would be in line with the normalisation principle established through the 1973 reform and, furthermore, that such a change would obviously increase the possibilities for resocialising inmates and help to limit the negative implications of the deprivation of liberty. 98 On the other hand, it noted that it was clear that such a system would be very costly, and, because of the state of the public finances, the Government was not in a position to support the proposals. 99 And that was that.
The market-based wage system was retained for the longest period in Tillberga (until 2011). 100 When marked-based remuneration was abolished it was reported that prisoners’ willingness to work decreased, apart from anything else because they no longer had a possibility of paying off their outside debts. 101
Since then, no new attempts to reintroduce market-based wages have been discussed by the legislator. Instead, problems with finding suitable work and low productivity (cost to the PPS) have been the focus, as well as the fact that fewer inmates are even fit for work these days, and many are even more marginalised than before. 102
A new millennium: new challenges
In 2003, the PPS reported that work operations had stagnated and had been run down. The reason was that the Government, in its instructions to the PPS, had demanded that it should prioritise treatment (påverkansarbete). 103 Nevertheless, work was still considered to be a crucial aspect of improving prisoners’ lives, 104 and was supposed to help improve their financial situations while in prison. 105
A Government-appointed inquiry in 2005 examined ending the obligation to work in prison. 106 It emphasised the fact that many inmates were not offered a meaningful occupation and questioned whether it was fair to oblige someone to participate in meaningless activities. 107 The counterargument was that it was not unreasonable to require a person sentenced to imprisonment to participate in some occupation, even if not adapted to an inmate's needs, if that would lead to a better climate in the prison. 108 The inquiry therefore proposed that the obligation to pursue an occupation should remain in place.
Renumeration was also discussed. Some changes considered related to the need to ensure that pay reflected the work actually carried out. The market-based remuneration system in Tillberga (the only one that remained) was mentioned, but there was no discussion on expanding the application of those principles. 109 However, an important additional argument for the status quo was touched upon, namely, that the level of remuneration should not guide a prisoner's choice of occupation. An inmate might be tempted, for example, to choose a better paid job instead of education. The inquiry emphasised that many inmates were in great need of education and therefore that it was crucial that payment for education and work be the same. 110 In this regard, the inquiry referred to the Council of Europe Recommendation (89)12 on education in prison, and No.5, which state that education should not have a lower status than work within the prison regime and prisoners should not lose out financially or otherwise by taking part in education. 111 The proposals of the 2005 inquiry partly laid the foundations for new prison legislation. It was decided that each inmate should have an individual plan for their time in prison (an activity plan), aimed at identifying activities that would benefit them. 112
Since implementation of the new Prison Act in 2010, the question of remuneration has not been raised. In a BRÅ report of 2015, the defects of the occupational system in Swedish prisons were highlighted. The lack of work, and particularly of meaningful work, was again identified as a huge problem. 113 The question of remuneration was not highlighted as a crucial issue. 114
Looking at the annual PPS reports from recent years, it is clear that a new factor has come into play. In its instructions to the PPS, the Government has demanded that the cost of prisoners’ work activities be cut and be covered to a larger extent by the revenue it generates from outside. 115 Since 2020, this coverage has increased from 50% to 52%. 116 During the same period, the level of occupational activity has continued to decrease, and currently stands at 75%. 117 Work for internal and external use/purchase stands at about 70% for women and a little bit less for men. 118 The explanation provided for this is prison overcrowding. 119 Ironically, this was also part of the explanation as to why the level of work had been sustained, the aim being to keep prisoners busy with producing furniture and other interiors. 120 The reduced costs such production leads to is not taken into account when calculating to what extent the income of the work cover the costs. 121
How prisoners’ work should be regulated and why
In 2024, the Swedish Prison and Probation Service faces an extremely challenging time. New crime policies are expected to increase the number of prisoners from 9,000 to 27,000 in nine years, 122 but prisons are already overcrowded and the PPS lacks the personnel needed to cope. 123 Among other things, this situation affects the capacity to provide prisoners with work (arbetsdriften) and the scope for organising meaningful, productive work. 124 Nevertheless, the ambition remains to continue with worthwhile occupational activities. We will not touch on these wider challenges here, however, but rather focus on the principles governing remuneration for the work being done.
It is clear that people serving time in prison vary considerably in terms of their state of health. 125 Some are fit for productive work, and some are not. One argument raised against paying a market-based wage is that, for several reasons, it is not appropriate to distinguish between the fit and the unfit in that way. 126 There is also a risk that prisoners may choose occupations that do not benefit them as much as they might from a rehabilitative perspective. 127 However, this argument raised against providing a higher wage to people in prison engaging in productive work is not persuasive. How to organise prisons in such a way as to overcome this challenge is primarily a practical problem. In what follows, the question of how people should be remunerated for work carried out is thus based on principle rather than a fixation with potential practical obstacles.
If a prisoner, for example, is working in a workshop under conditions similar to those in the outside labour market, it is hard to understand why their work should not be given the same value. If it is not, in particular in a situation in which the prisoner is forced to work, it must be considered to be part of the punishment itself. Under Swedish law, people can produce goods and services and sell them in two capacities, as either a worker or a contractor. Neither of these alternatives apply to incarcerated workers as the work they perform is not voluntary. Prisoners are obliged to engage in work if they are assigned it by the PPS. In normal circumstances, forced labour is a violation of human rights. 128 However, there are two situations in which that is not the case, namely, prison work and military service. 129 The fact that the labour is forced does not mean that it is not labour and so it entails a right to proper payment.
We shall use the international norms adopted within the framework of the Council of Europe to illustrate how human rights can provide guidance on the issue of remuneration. Virginia Mantouvalou has argued convincingly that ‘compelling people to work while also excluding them from labour rights is unjustified and has to be viewed as incompatible with human rights law’. 130 Inspired by Mantouvalou's work, we shall analyse remuneration and work in Swedish prisons through a Council of Europe human rights lens. The Prison Rules adopted by the Council of Europe in their revised form from 2020 will be the starting point (the Prison Rules). 131 The Swedish Government claims that the point of departure with regard to prison conditions is that the law should comply with the relevant international obligations. The Prison Rules are referred to as international obligations of this kind. 132
One fundamental point to note, when analysing work performed by incarcerated workers, is that, according to the Prison Rules, it should not be part of the punishment. 133 According to the Prison Rules, the ‘conditions of such work shall conform to the standards … which apply to the outside community’. 134 Such remuneration shall be ‘equitable’, 135 and the working conditions in general should be as close to those prevailing in the outside world as possible. Prisons are also obliged to treat prisoners with dignity and humanity. 136
The Council of Europe's Prison Rules are taken into consideration by the European Court of Human Rights (ECtHR) when applying the European Convention on Human Rights on prisoners. 137 In Stummer v Austria (2011), the applicant claimed that the non-affiliation of working prisoners to the old-age pension system violated his Convention rights on the basis of Article 14 (on the prohibition of discrimination), taken in conjunction with Article 1 of Protocol No. 1 (on the right to peaceful enjoyment of possessions) and separately Article 4 (on the prohibition of slavery, servitude and forced and compulsory labour). 138 The court held that ‘while the respondent State is required to keep the issue raised by the present case under review’, said State, even though it had not affiliated working prisoners to the old-age pension system to date, had not exceeded the margin of appreciation afforded to it in that matter. 139 The wording in this case indicates that the rules governing work in prisons are still developing, and therefore the conclusions drawn from this case must be treated with caution. This fact was highlighted by the dissenting judges in Stummer and discussed by Mantouvalou. 140
Dobrowolski v Poland (2018) was brought to the ECtHR by some prisoners who complained that the fact that they were earning only half of the statutory minimum wage for their work on the grounds that they were prisoners was discriminatory and constituted interference with their property rights. 141 The applicants relied on Article 14 on prohibition of discrimination and Article 1 of Protocol No. 1 to the Convention on the right to peaceful enjoyment of one's possessions. In this case, the Prison Rules were not mentioned. However, the Court came to the conclusion that the prisoners did not have any legitimate expectations to earn a higher wage. One reason for this was that the work was not compulsory, the complainants were aware of the financial conditions and had accepted them. 142 The situation therefore did not give rise to an issue under Article 1 of Protocol No. 1 under the Convention. 143 They did not have a legal entitlement to a higher wage. In such cases, Article 14 cannot come into play and the case was rejected. 144 It should be added that the Polish Constitutional Court had already found the wage unconstitutional, and therefore the law was amended. After the new law entered into force, working prisoners were entitled to the same statutory minimum wage as others. 145
In Zhelyazkov v Bulgaria in 2012, regarding remuneration for incarcerated workers, the Court referred to its previous case law, according to which ‘Article 4 does not contain any provision concerning the remuneration of prisoners for their work’, and observed ‘that it had consistently rejected applications by prisoners claiming higher remuneration for their work’. 146 The Court continued, however, that it was ‘mindful that there have been subsequent developments in attitudes to that issue, reflected in particular in the 1987 and 2006 European Prison Rules, which call for the equitable remuneration of the work of prisoners’, with the 2006 Rules adding ‘in all instances’. 147 The Court explained that the Rules, and the modifications of their wording, reflect an evolving trend. 148 In the particular case at hand, the work that was at issue before the Court was done two years before the 2006 Prison Rules were adopted and at that time it could not be considered ‘that there existed an unconditional obligation under Article 4 of the Convention to remunerate the work of all detainees in all circumstances’. 149 The Court found this claim to be manifestly ill-founded. 150 In a decision issued one year later in Floroiu v Romania, the Court repeated itself regarding the meaning of the European Prison Rules. 151 The applicant claimed a breach of Article 4 of the Convention. The applicant submitted that during the total period of 25 years that he had spent in different prisons, the management had forced him to perform various tasks which were very difficult, unpleasant and badly paid, without affiliating him to the old-age pension system, which he claimed to be in breach of both Article 4 and Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention, as discriminatory in excluding prisoners who worked from being affiliated to the old-age pension system. 152 In this case, the claimant could choose between carrying out paid work or tasks involving the day-to-day running of the prison, which was unpaid work entitling them to a reduction of their sentence. Prisoners could choose between the two types of work after being informed of the conditions in each case. 153 The Court observed that, in return for 114 days’ work, the applicant was given a 37-day reduction in the time remaining to be served, which the Court found to be a ‘significant’ reduction. The work carried out by the applicant was therefore not entirely unpaid, and this application was also considered manifestly ill-founded. 154 This case law indicates that the Court has so far not put its foot down regarding how the European Prison Rules should be applied, at least not in the context of Article 4 and Article 1 of Protocol No. 1, either alone or in conjunction with Article 14. The threshold for legitimate expectations in the case law with regard to Article 1 Protocol 1, both alone and in conjunction with Article 14, is an additional challenging factor. We shall therefore bring another aspect, the question of dignity, into the picture and explore whether such a focus might be helpful. The right to reasonable remuneration for work is closely related to dignity. 155
The dissenting judges in Stummer highlighted the role of respect for human dignity. 156 Judge Tulken referred, in her individual dissenting opinion, to case law from the German Federal Constitutional Court connecting appropriate remuneration for prison work with the principle of human dignity. 157 The German Federal Constitutional Court has since clarified that remuneration on the same level as Swedish remuneration for prison work violates the German constitutional right to dignity. 158 Even though the principle of dignity is inherent in all the Convention's rights, it is particularly closely connected to Article 8 ECHR on the right to respect for private and family life. 159 In its case law, the ECtHR reiterates how dignity, in different ways, affects the application of Article 8. 160 The question is how Article 8 might come into play when examining whether the Swedish level of remuneration for working prisoners could be called into question from a human rights perspective. Article 8 has been found to cover a number of situations related to working life. Surveillance and control of employees can affect Article 8, but also issues related to access to employment and employment protection. 161 The argument is that ‘private life encompasses the right for an individual to form and develop relationships with other human beings’, including relationships of a professional nature. 162 There is no case law establishing the Court's view on the connection between working conditions and Article 8, but it is clear that the ECtHR draws inspiration from other international human rights standards when analysing a case and the legal environment that applies. 163 As Article 8 covers rights to develop relations with others through professional activities, it would not be unreasonable to claim that such relations must be exercised with dignity.
Dignity is also one of the interests underpinning the existence of the International Labour Organization (ILO) and the adoption of international labour standards on working conditions. 164 The aspect of dignity has been at the forefront in the most recent ILO declarations pointing the way forward for the ILO. It is, for example, part of the ILO's Centenary Declaration for the Future of Work. 165 Isabelle Martin and Maude Choko have explored how different international and national courts and quasi-judicial bodies have connected minimum wages to dignity. 166 The argument that ‘[a] just reward for work must thus compensate for the long-term costs for the human body that may arise from work’ is particularly persuasive in this context, as will be explained. 167 As Davidov puts it, ‘[o]ne should not have to work for the benefit of another person without compensation. Similarly, it is quite obvious that one penny – to take an extreme example – cannot be considered compensation for a full working day’. 168 ‘(R)espect for our dignity, for the value of our time and for the fact that we sell part of our selves, dictates a certain minimum level of compensation at work.’ 169 Based on this argument, Article 8 could be activated to call into question the remuneration level for working prisoners, in particular if taken in conjunction with Article 14 ECHR on the prohibition of discrimination. The European Committee of Social Rights has invoked the principle of non-discrimination in this regard. According to Article 1.2 of the 1996 European Social Charter, the parties undertake to ‘to protect effectively the right of the worker to earn his living in an occupation freely entered upon’. In the interpretation of this provision, the European Committee of Social Rights has clarified, in relation to prison work, that ‘[p]risoners’ working conditions must be properly regulated, particularly if they are working, directly or indirectly, for employers other than the prison service. In accordance with the principle of non-discrimination, this regulation, which may be carried out by means of laws, regulations or agreements (particularly where companies act as subcontractors in prison workshops), must concern pay, hours and other working conditions and social protection (in the sphere of employment injury, unemployment, health care and old age pensions)’ [emphasis added]. 170
We argued above that the right to a minimum wage could fall within the ambit of Article 8. When a substantive article is read in conjunction with Article 14, the connection to the substantive article can be weaker. 171 Invoking Article 14 also means that if a Member State provides for more far-reaching rights than it is obliged to according to the substantive article, depriving some people of that right without a legitimate reason could violate said article read in conjunction with Article 14. 172
In Sweden, in the sectors related to work done in prisons, the minimum wage is set mainly by collective agreement. This level is also a benchmark for actors outside the collective agreement structure. For parties to an employment contract who have not reached agreement on a wage, the Labour Court uses the collective agreement level when looking for a reasonable level. 173 The collective agreement level is also the minimum level required for labour migrants entering Sweden. 174 This is a benchmark set by the state in that case. The equal strength of both parties negotiating these wages ensures that the set wage level fulfils the demands one might associate with dignity. 175 This minimum level in collective agreements has a clear redistributive affect. One might assert that the profit generated by work should be distributed in such a way that preserves the dignity of the person doing the work. 176 This argument is also relevant to work in prisons. When a working prisoner contributes to the PPS budget, there is no compelling reason why this profit should not be distributed between the prisoner and the PPS along the same lines as for workers on the outside. In the last PPS annual report, it transpired that its work operations covered 52% of its costs. 177 But this is an average, and it is reasonable to assume that the productivity of incarcerated workers differs considerably. The work done for internal use does not form part of this calculation either. As the ILO committee of experts has clarified, ‘equal pay for work of equal value should prevail at all times’. 178 This comment relates to interns and the issue of when it is reasonable to pay them the minimum wage. In the prison context, this could be interpreted to mean that prison workers who need support in order to be productive should be paid accordingly, and that those who do not need such support should be paid similarly to those in the open labour market who do not need support.
Article 14 of the ECHR prohibits discrimination on listed and unlisted grounds. 179 Discrimination, according to Article 14, is a ‘difference in treatment of persons in analogous, or relatively similar situations’ and ‘based on an identifiable characteristic, or status’. 180 The question that has to be raised is whether there has been a difference in treatment of persons in analogous or relevantly similar situations. If the answer is positive, it should be investigated whether it pursued a legitimate aim and the means employed were reasonably proportionate to the aim pursued. 181 Taking a prisoner working at Tillberga for company X for SEK 13 an hour and comparing them to a worker on the outside doing the same kind of job for SEK 150, it is difficult not to find that these two workers are in analogous or relatively similar situations, but treated differently on the basis of whether they are imprisoned or not. The ECtHR in Stummer established that being a prisoner is an aspect of personal status for the purpose of Article 14. 182 The next step is to discuss whether there is a legitimate aim in treating prisoners differently. The aim behind the current system put forward in the most recent legislative reforms is that the level of remuneration should not guide a prisoner's choice of occupation, as an inmate might be tempted to choose a better paid job instead of education. It was emphasised that many inmates were in great need of education and therefore it was crucial that payment for education and work should be the same. 183 The cost aspect has also been raised several times. 184
Is it a legitimate aim to suppress wages on the ground that inmates may otherwise be tempted to choose an occupation that would not be as beneficial as education for their rehabilitation, in the view of the PPS (which is also inherent in the argument it would be too costly to provide everyone with the same high remuneration)? This argument is in itself highly problematic, as it is based on the premise that inmates have lost all agency and the state has the right to control their lives to a far-reaching extent. This is difficult to reconcile with any aspect of dignity and therefore its legitimacy is highly questionable. On the other hand, the ECtHR has accepted the facilitation of the rehabilitation of juvenile delinquents as a legitimate aim. 185 It is true that the circumstances in that case were very different, but it cannot be ruled out that the rehabilitative aim may be accepted as justified. The Prison Rules themselves also state that when prisoners take part in education or other programmes during working hours as part of their planned regime, they shall be remunerated as if they had been working. 186 Applying the proportionality test, it might be asked whether the difference in treatment (as regards wages) strikes a fair balance between protection of the interests of the community and respect for the rights and freedoms of the individual. 187 It is also the case that states have been given a wide margin of appreciation when considering remuneration for work in prisons. 188 But it must also be taken into consideration that the evidence is sparse with regard to whether specific activities have rehabilitative functions and thus affect recidivism. 189 The cost aspects may be taken into consideration, as may the practical problems involved in organising work for prisoners in a way that makes it possible to distinguish between different occupations. On the other hand, the point of departure for the Council of Europe's Prison Rules must be taken into account, namely, that remuneration should be ‘equitable’, and that not being paid appropriately for work done may deeply affect an individual's dignity. Depriving a prisoner of this particular aspect of dignity implies that the work is part of the punishment, which the Prison Rules deem unacceptable. It also seems that views on this particular issue have developed considerably. 190 It therefore cannot be ruled out that the Swedish approach to remunerating working prisoners may be a violation of Article 8, read in conjunction with Article 14.
Summary and conclusions
The aim of this article is twofold: first, to explain the role the Swedish state has attributed to prison work since the Second World War and the arguments that have guided how prisoners’ working conditions are regulated; and second, to discuss whether the arguments against a market-based wage would survive a human rights analysis.
In contrast to the post-war ambition of normalising work in prisons and integrating it as far as possible with Swedish industry – in which work itself has a major value and incarcerated persons should contribute to society on the same terms as others – it has become a purely rehabilitative exercise with no expressed value for society at all. During the first 30 years after the Second World War, working conditions in prisons were developed to a certain extent to reflect work performed on the outside. During this period, the idea of a market-based wage also gained some momentum. However, since the middle of the 1970s proposals along these lines have been rejected on the basis of a lack of funds and, during the past 20 years, because it might interfere with the rehabilitative function of the chosen occupation. Turning to a human rights analysis, the European Court of Human Rights has to date been reluctant to integrate the Council of Europe's Prison Rules into its case law on prison labour. The margin of appreciation and perceived lack of consensus among the states on this issue have guided the Court. The revised 2006 Prison Rules have been in place for 18 years now, and constitutional courts across Europe have clarified their views on the issue of how incarcerated workers should be remunerated. The question of dignity plays a role here, and it has been argued that it would be beneficial to use Article 8 on the right to privacy in conjunction with Article 14 on the prohibition of discrimination to bring the ECHR case law closer to the Prison Rules. It also seems that the Swedish level of remuneration for incarcerated workers could be called into question as being incompatible with the obligations of Article 8 taken in conjunction with Article 14. The arguments the Swedish state has relied on to keep the level of remuneration down do not seem to be convincing, and reflect a deeply problematic attitude towards incarcerated persons in general. It is one thing for a person to lose their physical freedom when convicted of a crime, but quite another to lose their agency and dignity to the extent brought about by the Swedish remuneration system in prisons. Such a fundamental loss may be questionable from a human rights perspective and does not seem to befit a country whose constitution provides that the public power shall be exercised with respect for the equal worth of all and the liberty and dignity of the individual. 191
Footnotes
Acknowledgement
I would like to thank all participants in the workshop at UCL in July 2023 for their valuable input and in particular Virginia Mantouvalou and Faina Milman-Sivan for their very helpful comments on an earlier draft of the paper.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
