on the world: a view on human rights
The UK Ministry of Justice (MoJ) is currently on a mission to prove that less is always more only in the public sector with the privatisation of forensic services, probation services, and prisons, and cuts to legal aid at the expense of quality and confidence in Britain’s centuries-old justice system. Access to justice is a basic right, usually provided by qualified professionals, not a commodity. Just as justice should not be bought through bribes and threats, it should not be sold at a price. Anything else could compromise the rule of law.
One of the casualties of this philosophy is the provision of foreign language and deaf interpreting services in courts and tribunals in England and Wales. On the premise of providing greater efficiency and cost savings, in August 2011, the MoJ and Applied Language Solutions Ltd (ALS), a small private language service provider (LSP) signed a framework agreement, worth £168 million, to provide legal interpreting services for foreign language and deaf users across the whole justice system (police, prisons, etc.). Under this agreement, in October 2011, the MoJ signed another £90 million 5-year contract with ALS covering mainly the courts and tribunals*.
Before the courts’ contract took effect on 30 January 2012, allegedly without the knowledge of the MoJ, ALS was acquired by Capita, a giant in public service outsourcing. Although Capita had no prior experience in the languages sector, Capita Translation and Interpreting (Capita TI) has since become one of the fastest-growing and largest LSPs in the world. In Capita TI’s own words: “Our Framework Agreement with the Ministry of Justice for the provision of language services makes us one of the largest providers of public sector interpreting services operating in the UK.”
Now in its fourth year, the agreement has been described by politicians as a “car crash” and “nothing short of shambolic”. An ongoing boycott by the vast majority of qualified and experienced court interpreters, following the cut in standards and pay the contract entails, has meant the contract target of 98% of fulfilled assignments has never been met. The MoJ has had the option throughout of terminating this contract which has never been performed according to the terms agreed; instead, it has chosen repeatedly to defend it and its partnership with Capita TI.
In May 2014, the Daily Mail newspaper reported that, following a freedom of information request, the cost of using court interpreters, in criminal cases, had doubled to almost £15.5 million in 2013, as compared to £7.9 million in 2012. In response, the MoJ peddled out its standard response that in the first year of operation the contract saved taxpayers £15 million. For its part, Capita TI, which relies on the fact that it acquired ALS after the contract had been made, claims it has made a loss out of the contract; at the same time, Capita saw its profits for the first half of 2014 grow by 16%.
The MoJ has used its best marketing speak to defend the brand image of its product, citing “dramatic improvements over the life of the contract so far” and “The contract has delivered significant improvements so far.” Such statements, made throughout 2014 on various occasions by justice ministers Shailesh Vara and Lord Faulks QC in and outside of parliament, focus solely on quantitative matters. The alleged £27 million of savings made over the contract period has not been substantiated.
The courts tell a different story. As one judge put it: “It is simply no use to a court having an interpreter there on 98% of occasions when interpreters are required, because 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.” The right to a fair trial and to liberty, guaranteed under the European Convention on Human Rights and centuries-old common law, means that where a party – either as plaintiff or defendant – does not have English as their first language or needs assistance due to a hearing impairment, an interpreter has to be provided. It is ironic that in a year when official celebrations are underway to mark the 800th anniversary of the Magna Carta, the right to a fair trial set out in 1215 should remain at threat in this way.
The failure to provide an interpreter, especially one who is adequately qualified to provide such a service, results in retrials, individuals being held unnecessary on remand, and delays. These steep costs are not factored into MoJ savings, nor the waste of time to lawyers and judges and the anguish and distress caused to both sides in the case. The current “success rate” of fulfilled assignments stands at 94.8% for the third quarter of 2014.
One of the key failings throughout by the MoJ and Capita TI has been the lack of awareness of the role and work of court interpreters and their level of skill. A smattering of conversational Swedish and membership of the Wallander fan club do not qualify anyone as a Swedish court interpreter. A university degree in Swedish may prove insufficient too. There are other professional and empathic skills involved and interpreting goes far beyond mere words and phrases.
The services of interpreters are not used infrequently either: with over 40,000 requests reported in the third quarter of 2014, that is equivalent to over 700 requests a day. Interpreting services are provided in over 150 foreign languages and a spectrum of interpreting services for the deaf. Most users of the service are taxpayers. Interpreters are mainly used in criminal cases but their services are relied upon throughout the courts and tribunals service. In the ongoing historic child rape case involving former pop star Gary Glitter, the services of professional lip speakers have been used throughout to help the “profoundly deaf” defendant understand the case against him.
Where an interpreter is not provided, judges and lawyers inevitably complain. Although complaints are reported to have fallen over 2014, as have the number of requests for interpreters, possibly due to legal aid cuts in some cases, almost half related to the ‘non-availability of interpreter’. In one widely-reported case from Cardiff in July 2014, a frustrated judge asked the barrister to find an interpreter through local Chinese takeaway restaurants after Capita TI twice failed to provide an interpreter. The case was delayed by two weeks.
Another delay caused by the failure of a Slovak interpreter to attend a family court hearing on two occasions led to the highly unusual step of Sir James Munby, President of the Family Division, criticising the contract in his judgment calling it “an unacceptable state of affairs. It might be thought that something needs to be done.” He also set out the inadequate response he received from Capita TI, absolving itself of blame as interpreters are self-employed and not its employees. Among his criticisms of the company, he stated, “on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs.” Interpreters are in short supply; qualified ones even more so.
This unusual response no doubt reflects the growing frustration of the legal profession not only with the contract but also the MoJ and Capita TI’s inability to deal with its failings since 2012 and engage with service providers (interpreters) and users (judges/lawyers/parties to cases) to address their concerns. In one case, a solicitor reported that a Thai interpreter (both parties needed an interpreter) failed to appear on four occasions in the same case.
The court interpreting contract was among those singled out for undermining the “public’s trust in outsourcing” in the parliamentary Public Accounts Committee’s March 2014 report “Contracting out public services to the private sector.” The report criticised the £2,200 fine given to Capita TI for failing to provide interpreters: “this does not come close to taking into account the cost to the criminal justice system and to individuals caused by their failure to deliver.” It further states, “Some private sector providers have grown significantly in recent years, often through buying up competitors or other organisations in their supply chain—for example, Capita’s purchase of the court interpreters’ service. But the government has not analysed directly the implications on the operation of the marketplace, and on the delivery of public services.”
Although the MoJ remains intransigent, the contract has not failed to raise its fair share of criticism in parliament as well. Questions have continued to be raised in both the Houses of Commons and Lords. In one case, it was raised after a juror complained about a 4-day delay to a trial when an interpreter could not be found. In its brief history, the contract has been subject to inquiries by the National Audit Office (NAO) in September 2012, the parliamentary Public Accounts Committee in December 2012 and the Justice Select Committee (JSC) in February 2013. The NAO followed up its recommendations with a progress report in January 2014.
In response to successive critical reports, the MoJ commissioned an independent review into quality arrangements under the framework agreement in January 2014. Following a line of inquiry set up by the MoJ and interviews with professionals providing and using the service in March-May 2014, the findings of the report were published in November 2014. The report found that less than half of the interpreters employed by Capita TI held adequate or acceptable interpreting qualifications, usually certification from an interpreting body or a university degree. The linguists interviewed also felt that there is a “perceived lack of focus on both qualifications and experience in the procedure” of selecting interpreters.
The report made recommendations to the MoJ including simplifying the current 3-tier system for qualification into two and although it fell outside of the its scope, it recommended the “National Register of Public Service Interpreters (NRPSI) is given a more vital role (at least within the justice system) as they could provide incentives for interpreters to acquire relevant qualifications […]. This would also send a positive signal that the MoJ holds the interpreting profession in high regard and demonstrates a will to ensure the profession’s regulation. Regarding interpretation for deaf and deaf blind people, the NRCD should take a similar role to that of NRPSI.” This was largely the role played by the NRPSI prior to the new system being implemented and although falling outside of the scope of the review, the call for regulation is perhaps indicative of how far and tangibly standards have fallen since 2012.
The MoJ published its response in December 2014. It maintained its claim that “we have seen dramatic improvements over the last two years and we are continuing targeted work and investment to further improve performance to deliver value for the taxpayer”, but did not accept most of the recommendations made in the report, which are at least worthy of consideration. One consistent feature of the MoJ/ Capita TI partnership under this contract over the past three years has been the failure to engage with interpreters.
In a press release, Professional Interpreters for Justice, an umbrella group of interpreter organisations, said the MoJ had “failed to listen to experts in the field”. Paul Wilson, Chief Executive of the Institute of Translation and Interpreting said: “The Government Response shows they really don’t care very much that their contractor Capita is using thousands of unqualified linguists in courts and that there are no checks being made on the hundreds of unvetted sub-contracted language agencies Capita is using because it can’t fulfil the jobs itself.”
Over the past three years, the underlying problems in the contract – which are largely qualitative and not quantitative – have failed to be addressed. Commercial targets do not deliver justice. While quantitative statistics may continue to improve, qualitative problems remain unaddressed and persist. The concerns of interpreters have not been acknowledged or addressed properly; consequently, a revision of the contract made by the MoJ in 2013 as a sort of appeasement was broadly rejected by interpreters.
Do something about it!!
Capita could lose the contract when it is put up for tender shortly but the biggest loser remains the justice system. The language service framework agreement is just one way in which confidence in the British legal system has been undermined in the past few years. The fall in quality of interpreting services may be farcical, but it is also tangible.
Although there now seems to be complacency and acceptance that outsourcing is the future, this is NOT the end of the road. In less than one hundred days, on 7 May 2015, a parliamentary election will be held in the United Kingdom. Coupled with the fact that the language service framework agreement will soon be the subject of a new tender (the current contract expires on 30 October 2016), now is the perfect time to put relevant questions to candidates in your constituency [by e-mail, snail mail or Twitter]: If elected:
[Find your candidates online although not all have been selected yet]
Feel free to share any response you get here.
* This article ONLY looks at interpreting in the courts and tribunal services
My updates for the two previous years of the contract can be read at: