The right to know the case against you, in a language you understand, as part of fair trial proceedings is enshrined in the English common law and guaranteed under Article 6 of the European Convention on Human Rights. If the parties fail to understand, due to language or hearing ability, justice cannot be said to have been done.
Qualified court interpreters are thus an indispensable part of the justice system, providing a variety of foreign language and deaf user services. Around 700 requests per day are made for interpreters by courts and tribunals in England and Wales. The ongoing boycott of a framework agreement privatising court interpreting services, now in its fifth year, however, has attracted far less attention than strikes against cuts by legal aid lawyers and court magistrates.
Privatisation and Capita
In 2011, the Ministry of Justice (MoJ) signed a framework agreement worth £168 million, to provide legal interpreting services for foreign language and deaf users across the whole justice system. This included a £90 million 5-year contract covering courts and tribunals*. Prior to that, courts would make arrangements with individual interpreters.
The agreement was made with a company called Applied Language Solutions Ltd (ALS), which was acquired by Capita, now Capita Translation and Interpreting (Capita TI), before the contract went live in early 2012. This allegedly took place without the knowledge of the MoJ. Both parties have maintained silence on how this happened; the tender of the contract was open only to small and medium-sized enterprises (SMEs).
This is not the first time Capita has been involved in or accused of undermining small businesses. Since then, Capita, a public service outsourcing giant, but with no previous experience in the languages sectors, has become “one of the world’s fastest growing Language Service Providers, and fifth biggest in the UK.” Most language service providers are either self-employed individuals or small businesses.
Success in failure
With professional interpreters having declared their intention to boycott an agreement that cut rates of pay significantly and reduced qualification levels drastically, the agreement was doomed to fail from the start. Capita TI put those failings down to initial teething problems and, having resolved what it considered simply a question of payment for mileage costs with interpreters, has since hailed its service a success, as has the MoJ.
In the latest quarterly statistics for the third quarter of 2015 published in January, the MoJ stated that the overall ‘success rate’ of 97% for completed requests in that three-month period is “the highest since the contract commenced in 30 January 2012”. In actual fact, it reveals that now into the final year of the contract, Capita has consistently failed to deliver on its contractual obligation of a 98% minimum ‘success rate’. This translates into at least 20 failures per day.
The MoJ said, “the figures ‘show the highest success rate since the contract began and the rate of complaints was at its lowest level at just one per cent’.” The figures are deceptive: although made public by the MoJ, they are supplied solely by Capita TI, with no independent verification.
Interpreting the figures!
Any improvements that have been made are purely quantitative and not qualitative. While complaints may be down from court users, the broader ramifications are now being felt elsewhere too. A June 2015 report by Victim Support on lengthy delays and waiting times for criminal trials cites a February 2015 case in which “The court had been unable to book a sign language interpreter for the defendant so the case had been adjourned six times. The witnesses… were angry and dismayed. The witnesses also stated that they would not be prepared to come back again if the case did not happen on the next trial date.”
A November 2015 report on urgent improvements required in court custody by the HM Inspectorate of Prisons also cites problems arising from the framework agreement: when interpreters fail to attend court, the court cannot consider bail and a defendant is thus remanded. Sometimes, the lack of direct and telephone interpreting services has meant “detainees refused bail could be taken to prison without understanding what had happened in court or where they were going.”
In 2015, delays and retrials have continued to occur in serious, high-level cases. In March 2015, an international war crimes case for alleged torture during Nepal’s Civil War was adjourned until August as a Nepalese interpreter could not be found. The trial has not taken place since, possibly as no interpreter was found. Contrary to the myth that all competent speakers of two or more languages are capable interpreters, skilled and qualified linguists are thin on the ground. A Freedom of Information request reveals that Capita TI received £958 for the aborted hearing.
In the same month, a case involving slavery and people trafficking in Plymouth was adjourned after a Czech interpreter attended but the judge expressed concerns as to their impartiality and ability to handle the case.
Beyond the numbers!
Interpreting quality is not considered at all in the MoJ statistics. With the majority of registered and qualified public service interpreters maintaining their boycott of the framework agreement, those who have stepped into their shoes are sometimes, but not always, inadequately qualified to do so. A 2014 independent review of quality arrangements under the framework agreement ordered by the MoJ found that less than half the interpreters used by Capita TI held adequate or acceptable interpreting qualifications. Such qualifications are usually equivalent to graduate or postgraduate level. Capita TI’s own inability to recruit qualified court interpreters often leads it to subcontract to agencies.
In the third quarter of 2015, special services, which cover deaf (including but not limited to British Sign Language) interpreting services, cover 2% of requests, with a 95% success rate. For the similar figures for 2014, during which a total of 3,555 special service bookings were made, Jennifer Smith, a sign language interpreter, states, “The stats look fairly innocuous until you look at the cancellations rate for BSL bookings in 2014. Of these 24.5% were cancelled by customer action – customer did not attend or cancelled by customer), an increase of 6.5% in comparison to 2013.” Smith reports that the high cancellation rate for this service is likely to be due to subcontracting and the related excessive bureaucracy, other hallmarks of a Capita-run public service.
‘Value’
For the MoJ, it is about value for money. In response to a written question in parliament about the cost of the agreement, Justice Minister Shailesh Vara stated that “The Government has taken steps to ensure the system provides value for taxpayers by agreeing a national contract.” This value – a reported saving of £38.2 million by 2015 – has never been substantiated or broken down. It does not include the cost of adjournments or retrials.
The term “value for taxpayers” is also misleading: although sometimes confused by the right-wing media and politicians with large corporations like Google, the beneficiaries of these services – the disabled and immigrants – are taxpayers. The users of interpretation services are two of the most vulnerable communities in the country, hit particularly hard by government cuts and vilified by its culture of demonisation. This is just one of the ways in which current government policy undermines their rights and access to justice. Coupled with the fact that most service providers are self-employed independent professionals, both providers and beneficiaries are in a vulnerable position that is easy to exploit.
It was a fatal incident due to the provision of an interpreter for the wrong language and gender and cultural insensitivity on the part of the court system at the time that in part led to the creation of a National Register of Public Service Interpreters in 1994, and not market forces. In a 1998 academic study on the provision of Chinese legal interpreters in Northwest England, Ester Leung states, “the mere existence of interpreting services without qualified interpreters means that the Government is only paying lip service to linguistic minorities concerning their rights to be represented in the legal system.” Such an analysis might suggest that in almost 20 years the situation has simply come full circle.
They say “cut back”, we say “fight back”!
This is not to suggest that court interpreters have lost the fight. With the current framework agreement due to expire on 30 October 2016, on 24 October, following a consultation period, a tender was launched for a new 4-year national Language Services Framework Agreement. This contract will cover a broad range of public services, including legal and judicial services, and may well be provided by a number of suppliers.
During the consultation period, in 2015, the MoJ met interpreter body representatives. In March 2015 Professional Interpreters for Justice (PI4J) launched a manifesto demanding certain issues be taken into consideration in the new framework agreement, largely related to qualifications, professionalism, suitable terms and conditions of work and the inclusion of professional interpreters in drawing up the new agreement “to avoid a repeat of the current unacceptable situation.”
Prior to the publication of the contract tender, the Association of Translation Companies (ATC) accused the government of not understanding the language market and “attempting to apply the same level of bureaucracy it applies to largest players and ignores the fact that smaller enterprises dominate the sector [… which] risks crippling its language providers and putting at risk the many people that rely on them for language support.”
In a new report, the ATC has demanded a major overhaul in how the public sector buys language services, so that “achieving value for money should not be at the expense of ensuring a high quality service.” According to the report, “the public sector is one of the largest users of language services in the UK” and “such services are essential for millions of people.”
Deaf interpreters have also protested the new agreement through the National Union of British Sign Language Interpreters (NUBSLI) which launched a #ScrapTheFramework campaign in February 2015. In a statement in response to the release of the national framework contract notice in October 2015, NUBSLI said, “Today’s development is deeply disappointing and shows that the government are not interested in providing a robust service to ensure high quality access, but are merely aiming to cut cost. This will be to the detriment of the access rights of the Deaf community.”
Prior to the publication of the notice, in June 2015, concerns were expressed about how a new framework could affect deaf and deafblind court users. Jim Edwards from Signature stated: “The role of communication and language professionals is not to ‘support’ deaf and deafblind people during court proceedings – they are essential to making sure justice is done. They provide a service not only to everyone involved, but to the system itself, so that service must be second to none.”
The current contract proposal seems to suggest that few, if any, lessons have been learned over the past few years, especially from public service interpreters. Demands by interpreters that the current and proposed frameworks are scrapped and the old system is reinstated appear to fall on deaf ears.
On the other hand, a threat to boycott a planned pay cut for Home Office interpreters, who have not had a pay rise since 2002, first led to a deferral of the pay cut from January to February 2016 and the move was later suspended pending a review of interpreter services. During negotiations with the Home Office, a PI4J letter reminded it that “Interpreters have demonstrated in the last four years that they can and will refuse to work for low rates set by so-called ‘market forces’, thereby significantly reducing the pool of qualified interpreters and translators available to work in the public services. This is evidenced by the detrimental decline within the Ministry of Justice’s Court Interpreting Service since they outsourced to a private agency in 2012.”
The winning bid(s) and how the new national framework will unfold will become clearer in the coming months. Capita TI has not commented on whether it has made a bid for the new contract.
* This article only covers the framework agreement for courts and tribunals. For updates and details of previous years, including analyses of parliamentary and other reports, please see updates for
2015 https://onesmallwindow.wordpress.com/2015/01/29/privatisation-interpreting-the-cost-of-justice/
and my most recent update http://www.irr.org.uk/news/the-ongoing-fiasco-of-privatised-court-interpreting-services/
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