on the world: a view on human rights
As the current Ministry of Justice Framework Agreement for court interpreting services in England and Wales comes to an end, a reflection on the current situation and the new framework agreement which takes effect on 31 October 2016
On an average day, around 700 requests for foreign and sign language interpreters are made by courts and tribunals in England and Wales. Qualified, professional legal interpreters provide a broad range of language services across the civil and criminal courts. Without them, parties would not understand proceedings and would be denied the right to a fair hearing. The role of interpreters in the justice system is not minor.
Nonetheless, in a recent criminological study on language and power politics within the criminal court system, researchers at the University of Warwick found that “while formal legal language is inaccessible to many of the lay people who routinely pass through the criminal courts, non-English speakers are significantly more disadvantaged in spite of the assistance of interpreters no matter how good they are.”
The communities interpreters assist – migrants and the disabled – are among the worst hit by the government’s ongoing austerity measures, public service cuts and privatisation. They are further disadvantaged and marginalised by the negative discourse surrounding them in the media and by politicians. The privatisation of court interpreting services in 2012 worsened this situation and has had a serious impact on the whole court system.
The first cut…
On the premise of making savings and increasing efficiency, following a bidding process, in August 2011 the Ministry of Justice (MoJ) entered a 4-year £168 million language services framework agreement with a language service provider called Applied Language Solutions Ltd. to cover the whole justice system. In October 2011, a further 5-year contract worth £90 million was signed to cover the courts and tribunals. Before the contract was rolled out nationally on 30 January 2012, the company was bought by Capita, trading as a new division called Capita Translation and Interpreting (Capita TI) – a public services outsourcing giant with no prior language sector experience – allegedly without the knowledge of the MoJ.
The service was previously provided by self-employed interpreters registered with the still operational National Register of Public Service Interpreters (NRPSI), an independent professional regulatory body with over 2000 members. The national framework agreement was a disaster from the word go. Most professional interpreters continue to boycott it due to the drastic pay cuts they would have had to take and the steep fall in quality requirements.
Baroness Coussins recently summed up the problems faced in the courts over the past five years due to this framework agreement as: “Problems included unqualified or underqualified interpreters and people with no experience of courts or the judicial system and its language. In one case, the so-called interpreter did not know the difference between murder and manslaughter. People with the wrong language turned up: in one case, a Lithuanian interpreter arrived for a Slovakian prisoner; fortunately, they both spoke Polish so they muddled through. Often no one turned up at all because of a flawed booking system.”
The MoJ prefers to focus on “improvements” and the unsubstantiated saving of £38 million the agreement is reported to have made. As key costs, such as those for rescheduling court cases where interpreters do not attend, are not recorded, the accuracy of such a figure is questionable.
… is the deepest?
MoJ statistics, published in April 2016, show that only in the final quarter of 2015 was Capita TI finally able to meet the 98% completed requests target in the agreement, meaning it had previously failed to perform the contract. The overall completion rate in 2015 was 97%; in the first year of operation it was 90.2%. The latest statistics, for the first quarter of 2016, show that Capita TI has been unable to maintain that momentum.
The statistics provide only a partial picture. Rates have no bearing on the quality of the service provided. For rarer languages and deaf services, completion rates are far lower and do not include the high level of customer cancellations, particularly for sign language interpreting. The MoJ relies exclusively on Capita TI to provide statistics on its own performance, which only covers completed requests.
In early May, a written parliamentary question revealed that more than 2600 court cases had been adjourned due to interpreter unavailability since 2011. This figure conceals a worrying likelihood: many court cases simply proceed without an interpreter. It says nothing of the poor quality offered in too many cases attended by an unqualified interpreter.
In spite of consistent criticism, Capita TI has done well out of the agreement: “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 in the UK.” In 2015, its revenues grew by around 9%.
Many of the problems in the existing framework agreement relate to the failure of the MoJ and its contractors to recognise the central role interpreters play in the interpreting process. Interpreters are viewed as foreign language or British sign language (BSL) communicators and not as highly skilled language professionals who negotiate and relate different legal systems and sensitive matters and situations in more than one language.
That situation does not appear to have changed. Few improvements have been made. The damage done to undermine the quality of court interpreting over the past five years may well be permanent. Prior to launching the tender for the new framework agreement, the MoJ held a consultation which included interpreter representative groups. In March 2015, interpreters launched a manifesto setting out their demands for the new agreement; these have been largely ignored.
Many interpreters have been calling for the framework agreement to be scrapped altogether; the apparatus to provide court interpreting services was already in place. In response to the heightened risk to BSL interpreters – and thus the deaf community – the National Union of British Sign Language Interpreters (NUBSLI) launched a #ScrapTheFramework campaign in February 2015.
Back to square one
The MoJ announced the successful suppliers for the new framework agreement on 27 May. In spite of some structural changes, the new package is strikingly similar to the old one. The agreement, currently held solely by Capita TI, has been divided into four contracts: (1) – face to face, telephone and video interpretation; (2) – translation and transcription; (3) – non-spoken languages; (4) – independent quality assurance. The MoJ informed existing interpreters in an e-mail that “The new contracts aim to deliver a high quality service and address the needs of the business in a sustainable way, whilst addressing historic recommendations about how to improve the service.” Privatisation is a business; the provision of public services is not.
Capita TI only unsuccessfully bid for the second lot. The chosen suppliers are thebigword Group Ltd. for foreign language interpreting, translation and transcription (1, 2), Clarion Interpreting Limited for non-spoken language services (3) and The Language Shop (London Borough of Newham) to provide independent quality assurance. The contract is for four years, with the possibility of annual renewal for a further three years and covers the entire justice sector (courts, police, probation services, etc.).
Clarion and The Language Shop have not commented further. On 19 August, thebigword announced it had signed a £120 million contract with the MoJ, which includes the development of a trainee scheme. This follows another 4-year public service interpreting contract also awarded to the same company in May 2016. The £120 million contract, the largest public interpreting and translation contract, is larger than that awarded to Applied Language Services in 2011 with fewer services. In 2011, thebigword was the runner up but may well not have qualified for the SME criterion.
In a press release issued upon being awarded the contract is May, thebigword stated that it is “the largest interpreting services provider in Europe” and that linguists currently working in the justice system “will see improved working conditions.” When asked what these conditions would be, it told The Law Society Gazette that details could not be confirmed “as details are still being discussed and finalised” and it is “determined to make sure conditions are improved.” It also stated that some current Capita TI staff will be transferred to it.
The MoJ’s choice of thebigword as a successor to Capita TI is indicative of how little it has learned. Unlike Capita TI, Leeds-based thebigword has over 30 years of experience in the language sector and extensive public sector experience already. Like Capita TI, however, it has a reputation for poor rates and conditions of work. thebigword has long been subject to criticism for its frequent reductions in rates for linguists. As early as 2002, a blogpost raised concerns about a 15% cut in rates for translators “as the market for translation is tightening and we are experiencing real pressure on our prices.”
Other blogposts have raised similar concerns, with cuts made in at least 2008, 2011 and 2013. In 2013, thebigword sought to reduce rates to as low as GBP 0.038 per word due to the economic downturn and as “never before has our industry experienced such huge pressure from both the private and public sector to drive down prices.” In the same year, the company announced “Further positive trading has allowed one of Yorkshire’s most internationally focused businesses to pay its highest paid director a bonus in excess of £1.5m.”
thebigword appears to have a great PR team but the figures do not always add up. thebigword currently states that it has 8000 linguists on its books. This number suggests a shrinking company: in a 2010 interview, the CEO claimed it had 9000 linguists and in 2014 the BBC reported it had over 12,000 linguists.
The number of linguists a translation or interpreting company has on its books – all of whom are self-employed and not employees of the company – is a moot point. Anyone can register with such a company without ever working for it and qualification checks are not always carried out. Under the current framework agreement, Capita TI claimed it had 1200 qualified linguists, whereas it had only found 280 by the time the contract went live. In 2012, a Czech interpreter from Birmingham was able to register her pet rabbit as a MoJ interpreter.
Following the announcement of the contract award in May, the MoJ informed linguists that “the register of language professionals will be held by the Ministry of Justice”, maintained by the independent quality assurance supplier and passed on to the other suppliers (thebigword and Clarion). As well as having contacted existing linguists, thebigword has stated that it will recruit “more than 3,500 language experts.” A similar claim made by Capita never materialised, both with respect to numbers and expertise.
Trust us to deliver
For the MoJ, thebigword is a worthy successor to Capita TI as it provides “significant added value,” a key concept in public service privatisation. thebigword’s incentive to entice linguists is the opportunity to work with thebigword’s other clients. Calling its linguists “language experts” instead of “qualified linguists” evades the need to define the term and state whether or not they are either qualified, linguists, or both.
Part of the contract is for thebigword to provide training for interpreters, possibly through its own International School of Linguists (ISL) which has only provided a “Level 6 Diploma in Community Interpreting” since 2015, a qualification of its own devising, and separate from the Diploma in Public Service Interpreting (DPSI), the more common requirement. Interpreter education is clearly something else thebigword wishes to cash in on. Whether thebigword will be able to offer suitable training for rarer languages also remains to be seen.
thebigword is currently asking interpreters to register and sign 19 pages of small print of an interpreting services agreement before informing them of rates. It has also demanded that interpreters have a valid enhanced DBS (criminal record check) which must be renewed each year at their own expense; it is very difficult for self-employed interpreters to obtain such security clearance.
The rates thebigword is offering vary from a basic £18 an hour for standard interpreting requests and £24 for complex ones. In real terms, and in consideration of the precarious nature of the work interpreters undertake these rates remain incredibly low and uncompetitive. With its track record for poor rates and terms, many interpreters were not expecting much from thebigword. Many are reported to be unlikely to sign the agreement and another boycott is likely from the end of October.
No further details have been provided about the contract awarded to Clarion to provide deaf user services. Nonetheless, the NUBSLI has raised a number of concerns related to the impact of the contract on BSL interpreters and deaf people in court. These include the loss of experienced interpreters due to “unsustainable fees being offered”, lack of accountability as “it is more difficult for deaf people to complain about poor services” and concerns about the training offered.
The main novel aspect of the new framework agreement is independent quality assurance. Arguably, this is already provided capably by the NRPSI. In an April letter, former MoJ Minister Shailesh Vara states that quality assurance arrangements are “one of our main priorities within the next generation of Language Services Contracts”. The letter sets out the various tasks of the relevant supplier, to include independent assessment of skills, qualifications and experience, design and operation of a trainee scheme, management of the MoJ’s register of linguists, among others. How this is intended to work in practice and its expected utility remain to be seen.
Overall framework agreement 2.0 has considerable similarities to version 1.0 and the question of whether a framework agreement for language services is necessary in the first place remains unanswered but just as relevant five years on. The real differences remain to be seen after 31 October and whether these will lead logically to boycott 2.0.