on the world: a view on human rights
The wholesale sell-off of public services in the United Kingdom through privatisation is almost complete. Under the guise of providing value for money and increasing efficiency, public services have fallen into the hands of a number of non-transparent and unaccountable private outsourcing companies. The companies who run these services at a higher cost, lower performance rate than they were supposed to improve, and a loss of trust by service users, are identified as the main beneficiaries of this arrangement. The provision of public service interpreting, translation and other language services is no exception.
The collapse in March 2017 of one such company, London-based language service provider (LSP) Pearl Linguistics, has raised serious questions about the stated rationale behind the privatisation of such services and the sustainability of the “race to the bottom” business model. Months after being named a successful bidder for a £100 million framework agreement to provide language services to the National Health Service (NHS), the company went bankrupt, leaving medical practices, patients and unpaid linguists in the lurch, as well as a gaping hole in the finances of the NHS.
The low rates of pay and quality engendered by the privatisation of public language services, which imperil vulnerable sections of the community, has deterred many professional qualified linguists from working under privatised outsourcing contracts. The resulting fall in the quality and quantity of language service provision has destroyed the trust foreign language speakers and the deaf community had in the public services delivered to them. Who then benefits from the privatisation of public language services?
Languages in the Public Sector
In theory, where communication is impaired by the language and/or hearing ability of an individual, interpreters of spoken (foreign, not English or Welsh) or unspoken (British sign language and other deaf communications) languages are necessary to facilitate that process and ensure that such individuals have the same equal access to public services as everyone else. Other language services, such as written translation, transcription and subtitling, are also required, but to a far lesser extent. As the overwhelming majority of public sectors language services involve face-to-face interpreting, this is the focus here, with mention of other language services where relevant.
These services are offered across the vast array of public services, from the justice sector – the police, probation, prison and court services – to the medical sector, job centres, housing offices, children protection and social services, mental health care and so on. These services must be provided by qualified professional interpreters. Family members, friends and volunteers are not suitable replacements.
In practice, interpreters are often seen as an additional or unnecessary cost. Even in cases where an interpreter would help to keep costs down, they are simply not used, including when the use of telephone interpreting is an option. The result is that nothing is effectively communicated and no service has been provided, or at least not on an equal footing to other users.
Professional interpreters, with years of training, qualification and experience, are assumed to be merely people with the ability to communicate in more than one spoken and/or unspoken language and that their task consists of merely converting a string of words in one language into the equivalent in another.
Communication is far more complex and languages reflect the cultures and geography of their speakers. They also reflect the political, gender, social and general values of communities, which may not translate easily, or at all, into those of other communities. Interpreting is more than just words: how do you explain post-natal depression to a new mother from a culture in which this is not a known phenomenon and there are no words to describe it? Or the right to remain silent and/or the right to a lawyer to a person from a country, where in spite of written laws prohibiting it, confessions are routinely beaten out of suspects without any witnesses present? Can you think of an answer immediately?
In addition, coupled with Brexit and the hostile environment for migrants, the demonization and marginalisation of foreign nationals and the disabled in the media and by the government have entrenched discrimination. The media frequently claims that translation and interpreting services are a burden on the taxpayer, erroneously confusing tax-paying foreign nationals with foreign corporations that receive corporate benefits but either pay no taxes or do not pay full taxes.
In the justice sector, where language is an issue, an interpreter is essential to ensure the right to a fair trial for the parties, an essential ingredient of the administration of justice. In English common law, it is up to the discretion of the judge to decide at the beginning of proceedings whether a party’s level of understanding requires the use of an interpreter.
This is boosted by international law provisions on the right to a fair trial the UK is bound by, including the International Covenant on Civil and Political Rights, Article 14(3) of which has similar provisions to the European Convention on Human Rights (ECHR), which provides, in Article 6(3), “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;” and “(e) Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.” Other international legal instruments have similar provisions.
Although the focus is on the criminal law, this is extended to all legal proceedings, and areas of the law. The use of an interpreter does not assume an individual’s inability to speak English, but simply that he is informed of the proceedings “in a language which he understands”. More recently, this right has been further boosted by the 2010 EU Directive on the right to interpretation and translation in criminal proceedings.
For other public services, “The provision of language and communication assistance is one of the legal requirements placed on public bodies by the Equality Act 2010”, who are bound by a public sector equality duty. Disability is a protected characteristic under this law whereas language ability is linked to race. Equality of access to public services is also guaranteed under the Human Rights Act 1998. For disabled users, the medical and adult social care sectors also have an “Accessible Information Standard” to follow under the Health and Social Care Act 2012.
In spite of these written guarantees, both service users and providers relying on interpreters to facilitate their communication can vouch that this is often not the case. With austerity offered as the only viable economic model, the government has sought to address these legal obligations through outsourcing to private LSPs.
Language framework agreements – square peg, round hole
Privatisation itself is relatively not new to public language services. What has changed, since 2010, is the introduction of large framework agreements across England and Wales, embracing wide geographical areas, a broad range of public services and multiple service providers. The first such agreement, tendered in 2010, across the justice sector, was rolled out nationally in 2012, and was quickly branded “shambolic” by parliamentary committees. Professional interpreters refused to engage with an agreement that slashed rates of pay and undermined their skills. The £168 million contract, which was replaced when it ended in October 2016 by a larger £232.4 million contract, only ever hit its contract target once.
This did not prevent the government from creating the much larger Crown Commercial Services framework agreement in 2016, worth £250 million, covering a wide range of public services, from the military to social services, and the NHS Shared Business Service (NHS SBS) framework agreement in November 2016. According to British Sign Language (BSL) interpreter Nicky Evans, these services are commissioned on the basis of “cost and not quality, driving qualified and experienced interpreters into different careers”.
The privatisation of public interpreting services has been advantageous to the British government, allowing ministries and agencies to abdicate their statutory duties to private companies that are not liable to the taxpayer. For example, the new register of linguists under the current Ministry of Justice framework agreement fulfils the requirement in Article 5(2) of the 2010 EU directive of ensuring that Member States “establish a register or registers of independent translators and interpreters who are appropriately qualified”. However, is the mere provision of an interpreter enough to fulfil these statutory requirements? Are framework agreements the right way to dispense of this duty? Public bodies routinely believe it is sufficient to provide a speaker of English and a foreign language or a sign language communicator, regardless of the quality of the service provided.
The first justice sector framework agreement was dogged by complaints by users over the quality of interpreting, interpreters provided for the wrong language, and over 26,000 cases were adjourned as no interpreter was available. Where police custody is concerned, the quality of interpretation is defined as: “the suspect must be able to understand their position and be able to communicate effectively […] in the same way as a suspect who can speak and understand English and who does not have a hearing or speech impediment and who would therefore not require an interpreter”.
Quality concerns are not new. In a 1998 study on the provision of legal interpreters for the Chinese community in the northwest of England, Ester Leung noted that “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”. Almost twenty years on, costly agreements with large agencies have not changed this situation.
Medical care in Manchester
Such a duty does not only apply to the legal sector. In the provision of healthcare, language as a barrier to communication is a serious concern for many who need to use interpreters. It can add to the stress of a medical condition and aggravate mental health problems. A 2015 NHS report found that “language barriers in the health care setting can lead to problems such as delay or denial of services, issues with medication management, and underutilisation of preventive services”.
In 2016, researchers from the University of Manchester’s Multilingual Manchester project carried out a unique pilot study into “Language provisions in access to primary and hospital care in central Manchester”.
The Central Manchester University Hospitals NHS Foundation Trust (CMFT) comprises eight major hospitals and sees over one million patients each year. Its guidelines state that staff “are required to use professional interpreters when dealing with clinical issues, emphasising that the use of qualified interpreters is essential to ensure “confidential impartial and accountable interpretation””.
The CMFT has a small in-house team of interpreters for the main languages required and its own bank of interpreters but otherwise relies on agencies to provide other face-to-face and telephone interpreting services. Agency contracts are held with Pearl Linguistics Ltd., thebigword, D.A. Language Solutions Ltd. and LanguageLine Solutions.
With respect to the cost of the service to the CMFT charged by these agencies: “The cost of face-to-face interpretation delivered by external agencies is £27.03 per hour, or £0.45 per minute. For telephone interpretation services, the agency The Big Word charges £0.53 per minute. BSL interpretation is considerably more expensive, at £71 per hour.” This is not the rate received by the interpreters. The study found that there is no procedure in place “to validate suppliers and contractors; there seems to be little awareness of the risks posed by the absence of such quality assurance mechanism.”
In spite of the service offered, interviewed hospital staff told researchers “a large proportion of patient complaints were related to communication difficulties”. Communication difficulties were identified as the “biggest barriers in accessing and using health care”. Another 2016 report in nearby Wigan also found that “language is proving to be the biggest barrier for refugees accessing health and social care services”.
What difference does it make?
Interpreters are used in situations where miscommunication or misunderstanding could have serious, or even fatal, consequences. Beyond negotiating words, cultures and expectations, interpreters may also have to deal with loaded political situations.
In May 2016, three young Syrian refugees were arrested on charges of sexually assaulting two teenage girls in a Newcastle park. The incident took place just weeks before the Brexit referendum in a racially-charged climate that would claim the life of MP Jo Cox.
The mainstream right-wing press jumped on the issue, claiming the police had deliberately withheld news of the incident. In July, The Sun newspaper published an exclusive article claiming that the UK was suffering from a “Syrian crime wave”, feeding into Europe-wide right-wing media hysteria over alleged sexual misconduct by refugees, which remains largely unsubstantiated.
At the trial in October 2016, two Arabic interpreters relayed all the information between the court and the defendants. Inconsistencies arose between the statements the men made in court and the statements they had given the police, which had also been interpreted and transcribed, particularly key evidence of whether rape had taken place.
The case was delayed for one and a half days to allow for the transcripts to be retranslated and the judge pointed out two major errors made by the initial translator of the transcripts. The retranslation showed that there had been no sexual contact, which is what the defendants stated at trial. They were acquitted by the jury.
In her closing speech, the barrister for one of the defendants stated, “It is easy to take for granted the right to a fair trial. […] Imagine if you were abroad, when you were arrested, finding yourselves in the wrong place at the wrong time, being hauled off to a police station in a country where you don’t speak the language. How terrifying would that be?”
Interpreters and transcriptionists supplied to the police and the court would have been sourced via an agency providing such services under the Ministry of Justice Framework Agreement. Nonetheless, human error is possible in all endeavours. Had it not been for the interpreters in the court providing an accurate interpretation, the errors may never have come to light and these men would be serving a sentence for an offence they did not commit. The case also highlights the need to have a uniform high quality language service across the board.
The provision of accurate public interpreting services can be a matter of life and death. With access to language facilities for the deaf and foreign language speakers given low priority, there is a good probability that there are many deaths related to the poor provision or lack of such services leading to misdiagnoses of medical conditions, miscarriages of justice, welfare benefits being cut and the disabled being deemed fit for work when they are clearly not.
Long before the register of linguists under the current framework agreement, the original independent voluntary regulator of public services interpreters, the National Register of Public Service Interpreters (NRPSI), was set up in 1994 at the recommendation of a law commission following a fatality.
Iqbal Begum, a Pakistani native speaker of Mirpuri, was convicted in 1981 of the murder of her abusive husband. Upon appeal, it was discovered that her case had been assisted by an Indian accountant interpreting for her, who was a native speaker of Gujarati. The two communicated in a third language, Urdu, which she was not proficient in, and did not understand the difference between entering a plea of murder or manslaughter.
When her conviction was quashed on appeal, the judge stated, “It is beyond the understanding of this court that it did not occur to someone that the reason for her [the defendant’s] silence……. was simply because she was not being spoken to in a language which she understood”. By that time, after years of domestic violence and having been isolated and rejected by her family as a result of her conviction, she committed suicide. More than 30 years after this incident, there is still a failure to understand the differences between languages, even by the agencies awarded framework agreements.
A more recent tragedy highlights the dangers of not using an interpreter at all. Four-year old Daniel Pelka was murdered in 2012 by his mother and her abusive partner; they were later convicted. A Serious Case Review following his death found that in the time leading up to his death an interpreter was only used on a few occasions to communicate with his Polish mother and letters were often sent in English. In addition, his sister, only a few years older than him, was often used to interpret for her mother, including when his school or other authorities tried to find out the cause of injuries he suffered, or other problems. No interpreter was ever used to talk to Daniel alone. The use of an interpreter would have been essential to establish the situation in the home where domestic violence was clearly taking place.
And the winner is…
The fall in the quality and supply of interpreters over the past decade has destroyed trust in public services. Individuals are less likely to report crime or to give full details, fearing it will not make a difference. A recent review reveals there is already considerable race bias in the criminal justice system.
The Multilingual Manchester report found that more than half of doctors’ surgery users preferred not to use an interpreter, even when they had difficulty communicating. Poor interpreting facilities in the NHS means that some patients either prefer to pay for private doctors who speak their language or wait until they travel to a country where their language is spoken to receive treatment. Others simply do not use medical services. Poor experiences at Jobcentres that do not use telephone interpreters lead some users to simply risk losing their benefits to avoid similar future humiliation.
Complaints by medical, legal, social care, etc. professionals and interpreters remain unheeded. Although the work of professional public service interpreters is treated as marginal, without them, access to services is simply denied. By continuing with its language services privatisation plans, the government is pursuing a fatal course.
The poor service demonstrates that the government does not believe that foreign language speakers and the deaf have the right to a fair trial or equality of access. The exclusion or marginalisation of any section of a community within a society does not only affect the rights of that community but strikes at the heart of participatory democracy. This was demonstrated in the 2017 general election when Putney Green Party candidate Ben Fletcher was the first deafblind candidate ever to stand in UK parliamentary elections; finding professional BSL interpreters proved to be a challenge even at this level. Like much of the debate on privatisation in other sectors, it is not just about who wins or loses in financial terms, but the fundamental question of the kind of society we wish to be.
This is Part I of a three-part study into the impact of the privatisation of public interpreting services in England and Wales on the sector. Part I looks at the field and the impact on interpreting service users, Part II looks at the outsourcing companies and Part III looks at the impact on interpreters and linguists.