on the world: a view on human rights
From schools and hospitals to the police force, almost all vital public services are affected by the current cuts and privatisation agenda. Often poorly thought through, many of these government programmes are inefficient, counterproductive and lead to greater costs at the public expense. The decision to privatise court interpreting services, covering foreign language and deaf interpreting in England and Wales, which marked its first anniversary on 30 January, is no exception.
Legal interpreters, translators and other language service providers have long been an essential part of the justice system. The ability to understand the case against you and to understand the process you are subject to, either as a plaintiff or defendant, is a vital part of the right to a fair trial, and is guaranteed both by centuries-old common law and Articles 5 (right to liberty and security of person) and 6 (right to a fair trial) of the European Convention on Human Rights. This will be reinforced in October this year when EU Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings comes into force. Answering questions about this privatisation contract in the House of Lords on 9 July 2012, Lord McNally Minister of State for Justice stated that the courts receive some “some 800 requests a day for such interpretation”.
In an attempt to make savings here too, of up to a reported £12 million per year, as well as to make the system more efficient, the Ministry of Justice (Ministry) entered a 4-year framework agreement in August 2011 worth £168 million with a small private language service provider, Applied Language Solutions Ltd (ALS), to provide legal interpreting services potentially across the whole justice system (police, courts, prisons, etc.). A further 5-year contract, under the framework agreement (“agreement”), worth £90 million signed by the Ministry in October 2011 and taking effect in January 2012, covering mainly the courts and tribunals, has courted much controversy. It has been the subject of two parliamentary select committee inquiries, with the Justice Select Committee (JSC) publishing its report today.
Due to failings by both parties to the agreement, the new system proposed under the framework agreement fell apart long before it went live in January 2012. Under the old system, governed by a National Agreement, interpreters were largely picked from the National Register of Public Service Interpreters (NPRSI), the UK’s independent voluntary regulator for the interpreting profession formed in 1994. With a register of over 2200 interpreters covering over 100 languages, professionals qualify following rigorous rules relating to their qualifications and skills. Following the signing of the framework agreement, some of the provisions of the National Agreement were dis-applied to fit the new situation. The old system was not ideal, but neither is the manner in which the Ministry has proceeded, both with the procurement and implementation of the agreement. In its report, the Public Affairs Committee (PAC) criticised the Ministry for not being “an intelligent customer in procuring language services, despite the risks posed to the administration of justice and to the Ministry’s reputation.”
Qualified interpreters and their representative bodies who had been informed (or “consulted”) about the changes in advance largely refused to cooperate and work with ALS and expressed their resolution not to. The proposals under the agreement would see the rates paid to interpreters slashed significantly, as well as the introduction of other costs, and a new tier system for the qualification of interpreters, which lacks independent regulation and falls far below the current high level of qualification. Having failed to do its homework on what was involved in the whole process, the Ministry seems to have not realised that interpreters are key to interpreting services. When the service went live on 30 January 2012, ALS had only 280 interpreters signed up out of the 1200 the Ministry considered necessary for its operation and problems immediately arose with supply and quality. In its first month of operation, ALS only managed a 58% successful service. Marred by constant criticisms and delays, as well as questions raised by courts about the quality of the interpreters provided, in the first quarter of 2012, 182 magistrates court trials were recorded as ineffective due to interpreter availability issues as opposed to 95 in the same period in the previous year. As a result, within weeks, many had reverted back to the old system, which was retained as a contingency. Operation levels are those reported by ALS without independent verification.
In making the agreement, there has been a failure to acknowledge the qualitative side of efficiency and savings, a problem which appears to persist. The sidelining of interpreters in the process reinforces a myth that interpreting (and translating) is something that anyone who speaks a little bit of two or more languages can do and is a good way to earn some pocket money, as opposed to being a profession practiced by highly qualified, skilled and experienced individuals. Contrary to the false notion, the ability to interpret complex materials that could well baffle an educated monolingual speaker is not a skill the average child growing up in Newham, the UK’s most diverse area, acquires proficiently by the age of seven; similarly, a long weekend in Bucharest or the ability to sing the whole of hit pop song Dragostea Din Tei does not qualify a person as an interpreter of Romanian. In many cases, even a university degree is not enough to cut the mustard.
Legal interpreting is all the more complex: many cases involving just English often hinge on the “interpretation” of a particular word or action. Appearing before a court under any circumstances is a daunting prospect for most people, and to have to be subject to a court process in a foreign language is all the more unnerving. The English legal system can be difficult to understand even to those who know no other; interpreters regularly have to negotiate the gulf between different legal systems, cultural sensitivities on both sides, complex ideas and language from judges and barristers, as well as cultural issues within the same language community, such as politics, gender and ethnicity. The Law Society has reported that interpreters are particularly needed in immigration and criminal cases. The many newspaper reports over the past year of failings under the ALS/Ministry agreement include rape, murder and assault cases, as well as cases in which the interpreter and the plaintiff/defendant, although from the same country, could not understand each other as they do not speak the same language or the same dialect of a language. In some cases, an interpreter was sent for the wrong language. Although not always reported to them, judges and lawyers are acutely aware of the quality issues that persist. None of this helps to foster trust between the interpreter and the person they interpret for, which is essential for the task to be carried out properly, nor does it engender broader confidence in the courts’ ability to administer justice.
Lord McNally reported that in the first quarter of the operation of the agreement 26,000 requests were made for interpreters in 142 languages. Now performing at a reported 95% service delivery rate, both ALS and the Ministry put the problems down to early “teething problems”. Although improvements have been made, some problems have not gone away and have exacerbated with the passage of time, such as the decline in quality, which inevitably results in a decline in the courts’ ability to ensure justice. The majority of NRPSI-qualified interpreters have refused throughout to work for ALS. Given the option to contact interpreters directly under the old system, some have returned to the courts when contacted in this way or by solicitors. In spite of claims of a deliberate boycott by interpreters, as well as harassment of ALS interpreters in court, such a situation cannot realistically persist for over a year, especially not when most, if not all, interpreters are self-employed and are only paid for work they do. It is more likely that many have found their skills valued in the private sector, other areas of public interpreting work or in translation, or have found other work. For many, working under the conditions offered by ALS is simply not a choice: the cost of working, with respect to travel, time spent and administrative costs, can be more expensive than not. Former Justice Minister Crispin Blunt blamed what he termed “grossly overpaid” interpreters earning “six-figure salaries” for the early failures of the agreement. The overall effect, particularly the lowering of standards, can only be detrimental to both the interpreting and legal professions.
In addition to this, just weeks after the October contract was signed with the Ministry, ALS was acquired by Capita in December 2011, and is now known as Capita Translation and Interpreting. The company was acquired for £7.5 million with a further one million pounds paid to cover a debt. Given that all of the 126 companies involved in the original 2010 tender were small and medium enterprises, which most language service providers in the UK are, it is not clear that Capita would have been eligible to bid on its own merit. While the company has no previous involvement in language services, it is well known for its large stake in public sector outsourcing. Until the system changes later this year, and the current criminal record bureau (CRB) checks which are mandatory for interpreters are replaced, Capita is also responsible for providing this public service. Another immigration service related contract awarded by the UK Borders Agency (UKBA) to Capita last year saw the company send e-mails and text messages to thousands of migrants, including students, workers and investors, to leave the country as they were not lawfully resident; in many cases, the opposite was true. Although Capita is well known for its mismanagement of public contracts, the Ministry felt reassured by its involvement. The senior management of ALS, previously majority shareholders in the company and thus the recipients of the fee paid for the company, left ALS/Capita by mutual consent in July 2012.
With many complaints made by the courts, lawyers, linguists and MPs whose constituents had contacted them, a first inquiry was held by the National Audit Office (NAO) in May to July 2012. The findings were published in a memorandum last September which largely informed the two parliamentary committee reports. The memorandum was critical of the handling of the whole process, accusing the Ministry of “underestimating the project risks” and allowing “the contract to become fully operational before it was ready.” The report also stated that ALS/Capita did not inform the Ministry of various contractual breaches, relating to its inability to assess rare languages and perform checks on interpreters, until they were discovered by the NAO. While the report stated that “concerted efforts by the Ministry and Capita have subsequently improved performance in a number of respects”, it criticised ALS’ initial efforts as “wholly inadequate, leading to missed performance targets” as well as pointing out persistent quality issues with ALS interpreters. The NAO also discovered that without any language other than English being involved, the Ministry and ALS/Capita had very different interpretations of what certain key terms, such as “registered”, meant. The report also criticised the Ministry for failing to impose contract penalties, service credits, on ALS/Capita for its clear and repeat breaches of the contract. These were only imposed after May 2012, as the Ministry considered the additional investment made by Capita to be sufficient.
The parliamentary Public Accounts Committee (PAC) held an inquiry in the autumn with oral evidence sessions held on 15 October and 29 October with both representatives of the interpreting and legal professions and the Ministry and ALS/Capita. Before both committee hearings, interpreter representatives described the contract as “unsalvageable” with one stating that “it is my view that this contract is unsalvageable; there is nothing that can be done to it that will ever make it work.” Using the NAO inquiry as a basis, this report, published in December 2012, came to many of the same conclusions and recommendations: the Ministry’s failure to carry out adequate pre-contractual due diligence on its supplier, failure to heed prior advice – or as emerged from the hearing with Ministry staff, failure to read the credit rating report – or apply sufficient penalties for breaches. The PAC raised concerns about persisting quality issues, the failure to provide suitable linguists or assess losses to other parts of the system. It expressed its concerns that ALS/Capita “may not be doing enough to recruit interpreters or to incentivise interpreters to take jobs in rare languages and covering all geographical locations. [And] The Ministry cannot be sure that all interpreters working under the contract have the required skills, experience and character.” All three reports, including that published today, criticise the lack of competition in the procurement procedure as well as the near-monopoly granted to ALS/Capita in court interpreting services. During the evidence sessions, Margaret Hodge MP, chair of the PAC, accused Ministry staff of replacing a “public monopoly” with a “private monopoly” under this agreement. She also called the evidence of the failures in the procurement process by the Ministry shocking, stating “what really worries me about this: if you make a mistake on what is a relatively small procurement contract for your Department, and you are involved in procuring private prisons, your answers give me absolutely no confidence that you will be able to procure those in an effective way for the taxpayer.” In summing up the report, she stated that “almost everything that could go wrong did go wrong”, leading to “total chaos”.
The Justice Select Committee (JSC) whose role is “to examine the expenditure, administration and policy of the Ministry of Justice and associated public bodies” announced its inquiry in July 2012 and invited submissions of written evidence, which were provided by linguist associations, individual linguists, the courts, law firms, individual lawyers and others. The evidence contains ample examples all round of the failings of the new system up until September 2012. Oral evidence sessions were also held as part of this inquiry on 23 October and 30 October, during which the agreement was described as both “unsalvageable” and “unworkable”. The JSC published its report today, which focused on six areas. It also expressed its concerns that during the process, the Courts and Tribunals Service (HMCTS) “had actively discouraged its staff from submitting formal written evidence”. This had resulted in a further 3-week online consultation forum being set up, where submissions could be made anonymously; the JSC later learned that the HMCTS “had issued an edict instructing their staff not to participate.” Building on the conclusions and recommendations made by the two earlier inquiries, the inquiry found that there was no fundamental problem with the quality of service in the old system and that “our evidence strongly suggests that the Ministry of Justice did not have a sufficient understanding of the complexities of court interpreting work and failed to properly anticipate or address the clear potential for problems with ALS’ capacity to deliver on its promises.” It also expressed its concerns that
“Existing safeguards of quality may not be fit for purpose, and consider it likely that without an independent review and subsequent revision of the tiering system, the confidence of important stakeholders, including the judiciary, magistracy and legal professionals, will continue to be undermined. The existing arrangements may not be financially sustainable as Capita is propping up the continuation of the Agreement, which mean that the Department’s savings, originally projected to be £15 million, are effectively being secured at the company’s expense.”
Using a term also applied to the agreement by PAC members, the JSC chair Sir Alan Beith MP stated, “The Ministry of Justice’s handling of the outsourcing of court interpreting services has been nothing short of shambolic.”
The new Justice Minister Helen Grant MP has held meetings with professional interpreter organisations, which is a positive step. For its part, however, the Ministry, which under the terms of the framework agreement has had ample opportunity to terminate the agreement for breach, has instead staunchly backed the new system. The JSC report states that “The Ministry of Justice has steadfastly defended its decision to procure language services from ALS, and has remained publicly confident that the operating model set out in the Framework Agreement can provide the service that the justice sector requires.”
ALS/Capita has reported making no profit on the agreement in its first year. In the House of Commons last month, Helen Grant MP stated that Capita had been paid £8.5 million for the contract in the first year and had been fined around £2000. While, according to the JSC report, it appears that Capita is likely to pick up any additional costs created by the service, this does not include the expense that has already been generated and will continue to rise for the taxpayer due to the number of retrials, individuals held on remand as an interpreter could not be found for a 15-minute hearing, or rescheduling of trials. This financial cost does not even nearly compensate the distress caused to plaintiffs/defendants by a sensitive trial being rescheduled, having to undergo the whole ordeal again of being questioned and well as the loss of confidence in the court and legal process. The potential for a miscarriage of justice and the damage to the legal system cannot be underestimated.
In their submissions to the JSC inquiry, several interpreters and professional interpreter bodies called for the framework agreement to be terminated; others called for it to be reviewed and revised. Whether the recommendations made by the various inquiries over the past year and interpreter organisations in communication with the Ministry will be acted upon remains to be seen. Improvements have been made, but there is still a long way to go, not just in improving the current system, but also in bringing it back to the performance and quality level of the old system it replaced.
Due to discrepancies, all figures and statistics are taken from the National Audit Office memorandum and/or Hansard unless otherwise stated.
Aisha Maniar is a freelance legal translator and editor. She is not an interpreter.