on the world: a view on human rights
This is an update of an article I wrote last year about the privatisation of foreign language and deaf interpreting services in courts in England and Wales under a framework agreement that entered its third year on 30 January 2014. This article looks at the second controversial year of operation.
Next year marks the 800th anniversary of the Magna Carta, arguably one of the most important legal documents in the world, guaranteeing the right to a fair trial. That right is currently under threat in various ways in modern Britain, particularly through plans to privatise legal aid services, and the privatisation of court interpreting services, the framework agreement governing which became operational on 30 January 2012.
The agreement, worth £90 million over a five-year period, was made in August 2011 by the Ministry of Justice (Ministry) and Applied Language Services (ALS), shortly thereafter acquired by Capita. The agreement fell apart before it even started when the majority of registered interpreters boycotted the new arrangement, which cut their pay and downgraded skill requirements. Two years on, over 85% of qualified court interpreters are reported to still boycott the agreement.
In its first month of operation, in February 2012, performance was at 67%. Although the agreement set a target of 98% of interpreting assignment to be fulfilled, that target has yet to be met, effectively meaning that Capita has been in breach all along. Statistics published by the Ministry in March 2013 for the first year of the agreement show that out of more than 130,000 requests made for language services covering 259 languages, there was only a 90.2% “success rate” for the whole period. In January 2013, performance was 86%, meaning that almost one in seven trials where an interpreter was necessary was disrupted.
The agreement has not fared much better in its second year, and cancellations and disruptions to court proceedings continue. In May 2013, a judge in a quadruple murder trial in Nottingham called the system a “complete disgrace” when a Mandarin interpreter failed to attend for the defendant to enter a plea. In November 2013, a judge at Bradford Crown Court described the delay on two occasions to provide a Polish interpreter as “wholly unsatisfactory” in a sentencing hearing where two women had already pleaded guilty to keeping a brothel in March 2013.
Interpreting services are used mainly in criminal and immigration proceedings and interpreters have played a crucial role in a number of major cases over the past year, including child cruelty, trafficking, and murder, among others. The interpreter’s task is complicated and takes skill and ability. Their role in the final verdict is by no means incidental. The needs of users of deaf interpreting services are also complex. The failure to provide such services is an additional unnecessary cost to taxpayers and undermines confidence in the justice system.
When an interpreter fails to attend, judges are entitled under the agreement to file wasted cost orders against the supplier, Capita. So far, 11 such orders have been filed to a total of £7,299. In an appeal case against ordered costs of £23.25 Capita won in March 2013 for interpreter non-attendance, where failing to provide an interpreter as a one-off was not considered “serious misconduct”, the judge nonetheless dismissed its argument that it only need deliver 98% of the time: “if an interpreter is required justice cannot be done without one and a case cannot proceed. An interpreter is required on 100% of such occasions.”
Complaints have continued from all sides: interpreters, courts, lawyers, and politicians. Following its early failings, the agreement was subject to inquiries by the parliamentary Public Accounts Committee (PAC) and the Justice Select Committee (JSC) following the publication of a damning report by the National Audit Office on the procurement and performance of the agreement up to July 2012. In February 2013, the Ministry responded to the PAC findings published in December 2012, prompting the committee to commission a new follow-up report by the NAO, published in January 2014. The JSC also published its report that month. Both committees’ findings were critical, describing the agreement as “unsalvageable” and “shambolic”.
The Ministry published its response to the JSC report recommendations on 25 April 2013, as well as following discussions with interpreter organisations, in which it offered interpreters a new package, with a 22% increase in current rates under the framework agreement. It also raised the travel allowance marginally, which was blamed for the January 2013 dip in performance. Rather than terminating a contract that remains unfulfilled, the Ministry chose instead to invest a further £2.8 million of public money into the agreement and vary its terms. Setting aside the qualitative issues raised, the Ministry’s response instead emphasised the savings that provide “better value for money for taxpayers”. That has yet to be evidenced, as has proof that qualified interpreters have been won over by the new package.
The Ministry reports having saved £25 million over the past two years under the contract. Capita Translation and Interpreting reported in 2013 that its profits had fallen sharply after taking on the contract in 2012, with a steep rise in operating costs. Having failed to impose contractual penalties for non-performance in the first few months of the agreement, the latest NAO report stated that the Ministry had fined Capita over £46,000 for “fatal flaws in its court interpreter service between May 2012 and November 2013.” PAC chair Margaret Hodge MP referred to this amount as “peanuts” in view of the contract size and level of non-performance.
The Ministry’s response to the JSC report was debated in Westminster Hall in Parliament on 20 June 2013. During that debate, Sir Alan Beith MP, JSC chair, stated that while the Ministry has emphasised cost-effectiveness and efficiency, the government had failed to provide the same level of service”; there was no “improvement in service to the courts.” Alan Johnson MP stated that “The final conclusion is that justice and the right to a fair trial have been seriously compromised as a result of this debacle.” In her response, however, then Justice Minister Helen Grant MP again emphasised the savings the Ministry had made, as opposed to qualitative improvements to the service.
The most recent statistics published by the Ministry on 16 January 2014 show that 237,700 requests were completed between 30 January 2012 and 30 September 2013. The total number of bookings made, and that were not completed, or were completed off-contract under the old system, are not mentioned. As the current agreement applies a tier system with interpreters ranked in three categories of qualification, with only tier 1 interpreters truly being sufficiently qualified to interpret in court, this does not give the overall picture. The statistics, however, show that complaints went up in the first three quarters of 2013.
While the latest statistics show the “success rate” to be around 94% by the end of September last year, still failing to meet its target, there was more criticism of the agreement when the NAO published its progress update in response to PAC recommendations on 22 January. Although the report points out where the Ministry has made progress by implementing recommendations, it also criticises its failure to meet the 98% target and states that the “success rate” in November 2013 was the same as at the time of the first NAO report, covering a period ending July 2012. Furthermore, since the Ministry is only collecting data on off-contract bookings from January 2014, there are no actual data on how often the courts have contacted interpreters directly.
The report also points out a much higher increase in the number of tier 2 and 3 interpreters, as compared to qualified tier 1, but that assessments of interpreters were still lacking. There was a 7% increase in the use of tier 3 interpreters, who are not really suitable for court work, by November 2013, with them dealing with 10% of bookings that month. Focusing more on qualitative issues, the report nonetheless states that savings estimated by the Ministry do “not quantify and take into account the opportunity costs of delayed court cases or additional work”, and that while performance has improved since the agreement variation in May 2013, “fulfilment rates have increased […] but only back to the levels seen in 2012.”
As a result, the Ministry was invited once again to give evidence to the PAC on 27 January 2014. The committee criticised the performance of the contract and the failure to improve the service with PAC chair Margaret Hodge MP stating that Capita had failed to perform in more than 23,000 cases. Peter Handcock, Chief Executive of the HM Courts and Tribunals Service, called the old system “ramshackle”, but conceded that it will “continue to be a real challenge to hit 98%”. Hodge concluded that, “In my view, Capita has not succeeded in this contract and it has failed”. The question was asked of whether the Ministry had considered terminating the agreement. The Ministry was also asked why it is still considering making further contracts with Capita when it has clearly failed in this case.
Now in its third year, the agreement appears ever more unsalvageable, particularly with respect to the decline in standards and the boycott by professionals who understandably no longer have an interest in a system that has showed no faith in their professionalism. Beyond court interpreting services, the issue has wider ramifications for the outsourcing of legal services by the Ministry. During the debate in Parliament in June 2013, Jeremy Corbyn MP stated that “The Ministry of Justice and others are obsessed with the contract culture. It distances Ministers from the immediacy of decisions and […] leaves the public and the victims in a much worse situation, with much less accountability on the delivery of services.” Indeed, Capita is not accountable to the public who pay for the service, but to the Ministry with whom it is has a contract. Ian Swales MP called it “a business to win a public sector bid or PFI contract and then trade it on”, as ALS did with its sale of the agreement to Capita.
There is also the question of the Ministry’s relationship with companies like Capita. While MPs have asked many times why the agreement has not been terminated given its catalogue of disasters and many interpreters have demanded it is discarded altogether, over the past few years, a succession of justice ministers have defended the contract, even though the Ministry conceded in its response to the JSC report that “We know that performance in the MoJ under the contract has not been of a satisfactory level.” Since 30 January 2012, the Ministry has had the option of terminating the contract for non-performance by the supplier, but has chosen not to.
Instead, Capita was named “as a preferred bidder for the MoJ’s electronic tagging contract, in a deal that will create £400m in revenue for the company over six years” and due to fraud by its rivals Serco and G4S, has seen the contract handed to it on an interim basis until March 2014. According to the Law Gazette, “The MoJ has increased spend significantly with Capita since 2010/11, from £3.9m to £25m in 2011/12.” As raised by the PAC on 27 January, the impact of the problems in this contract could affect others currently going through the Ministry, such as for probation services and legal aid. Under the pretext of cuts and savings, with a legal system increasingly geared towards those who can afford it, the real victim is the justice system, which is being sold off.