on the world: a view on human rights
Translators and interpreters are typically self-employed and work independently and alone. Prior to the recent introduction of public sector language framework agreements, spoken (foreign) and unspoken (deaf spectrum) language interpreters were usually contacted directly via the National Register of Public Service Interpreters (NRPSI), the independent voluntary regulator of professional interpreters specialising in public service, and the National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD).*
Some public sector bodies employ a small number of permanent in-house interpreters, and may use a bank of external interpreters to help meet extra demand. Translation and interpreting agencies are also used to source interpreters of spoken and unspoken languages that are used more rarely.
Agencies are a logical business structure for the provision of freelance interpreters and other linguists, both in the public and private sectors. Many are run by and/or were set up by professional linguists who are in tune with the needs of both service providers and users. Most are small and medium-sized enterprises (SME). It is the small scale of operations and the isolation in which linguists work that makes the language sector far more susceptible to unfair privatisation practices.
Is there an app for that?
The growth of a small number of large, international agencies over the past few decades has been driven by technology: largely, the internet and IT solutions. As practitioners and academics debate whether translation and interpreting are an art or a science, technology has created the language industry: “the fastest growing providers are firms that offer language and technological solutions with translation and interpreting as well as software engineering and website design. The modern language industry’s market size is taking on global proportions.” (Hogan-Brun: 2017).
The real advantage large language agencies offer under framework agreements is IT solutions that help to deal with rising costs, such as the portals they develop and own to book and manage linguists, streamlining the administrative process. The success of these solutions allow these public sector contractors to sub-contract their duties to other smaller agencies, creating greater control over the industry as a whole and stymying competition in both the public and private sectors.
Faster, larger, cheaper and with a broader reach, technology’s qualitative promise does not always match its quantitative offer. It is not necessarily smarter either: among those registered as available interpreters under the first Ministry of Justice framework agreement (2011-2016) with Capita Translation and Interpreting (Capita TI) were a pet dog and a rabbit.
The outsourcing and privatisation of public sector interpreting and translation services have long existed. Nonetheless, in August 2011, the Ministry of Justice stepped up the game when it signed a four-year framework agreement with Oldham-based Applied Language Solutions (ALS), a small language service provider (LSP), worth £168 million, to supply interpreters and translators across the justice sector (courts, police, probation, prisons, etc.). A further £90 million 5-year agreement was made under the same framework with the courts. It proved a disaster as soon as it was rolled out nationally in early 2012.
Poor performance in the courts was just one aspect of the shambles of the framework agreement. A 2012 National Audit Office (NAO) review was critical of the very procurement process. The Ministry of Justice advertised the tender for the framework in October 2010, to which 126 companies responded. The Ministry whittled this down to three by December 2010, and in February 2011 invited ALS alone to submit a final tender. Its tender advocated the very pay and quality issues that led to a sustained boycott by professional interpreters. ALS’ proposals would squeeze out the interpreters at the heart of the system rather than embrace them. The Ministry accepted this.
The NAO found that the Ministry’s due diligence was “not thorough enough”. In 2007, ALS boss Gavin Wheeldon failed to convince millionaires to invest in his company on the entrepreneurial television programme Dragon’s Den, with one of the millionaires’ own due diligence finding that the figures did not add up. In the tender, Wheeldon, who has no language background, offered the added value of technology.
ALS had other fans. In December 2011, public sector outsourcing giant Capita, famous for its innumerable blunders and with no experience in the language sector, announced that it had purchased ALS for £67.5 million; ALS was henceforth known as Capita TI.
Capita saw the “potential growth of the business through the successful roll-out of the MoJ [Ministry] and other large contracts, and the opportunity for greater market penetration within the language services market.” The decision to roll out the agreement nationally in January, rather than introduce it gradually, was “influenced by the fact that Capita had purchased ALS on 23 December 2011, a development that gave it confidence.” Capita was too large to bid on a tender aimed at SMEs, yet serious questions remain unanswered over the Ministry’s claims it did not know that its contractor was in the process of being sold.
Overall, and as a company with no prior experience, Capita has done very well out of this contract, even though it has had to pay many fines for its failings and did not make the contract profitable. In its 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.”
In spite of daily complaints and a fall in quantitative and qualitative standards that left a court combing Chinese restaurants to find a Mandarin interpreter and a case where a BSL interpreter failed to attend on 6 occasions, for Capita TI, the contract has offered other benefits. As well as now being one of the largest public sector outsourcers in the industry, covering other public services, it has also varied its private offering through the acquisition of established and specialist agencies such as Amity Communications and International Translation Resources.
It only bid unsuccessfully on one lot for the second framework agreement, which started on 31 October 2016, the lion’s share of which was taken on by the runner up in the first tender, thebigword. Albeit with a larger contract and remit, thebigword picked up the baton exactly where Capita TI left off.
Successive justice secretaries have defended both justice sector frameworks, citing “value for money” and unsubstantiated savings, even though trust in the justice system and its ability to guarantee fair trials have been destroyed. The first framework agreement only ever hit its target performance rate, of 98%, once in five years. This is based on figures provided solely by Capita TI. The framework agreement’s failing were blamed on interpreters who, in the words of Tristan Blunt MP, are “grossly overpaid”, a similar tactic applied by the Ministry when legal aid lawyers went on strike against sector cuts.
Court interpreting has worsened rather than improved over the past 7 years and none of the Ministry’s stated reasons for privatising the sector have been realised. While problems did indeed exist in the previous arrangement, they have been inadequately addressed by the current system. The Ministry’s attitude is perhaps best represented by the 98% performance target it has set in both the framework agreements: a fair trial, a fundamental human right and a key aspect of the rule of law, is a goal the Ministry of Justice believes can be ignored at least 2% of the time. As one judge stated, “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.”
Ultimately, there is a lack of accountability: the Ministry claims to have no responsibility as the service is in the hands of its contractor. The contractor on the other hand, with no public sector duty, is not responsible to the public or for its suppliers as they are self-employed, not its employees. Much of the work is also subcontracted to other agencies.
In a 2013 parliamentary debate on the contract, Jeremy Corbyn MP stated, “The Ministry of Justice and others are obsessed with the contract culture. It distances Ministers from the immediacy of decisions and, at the other end, leaves the public and the victims in a much worse situation, with much less accountability on the delivery of services.”
The trajectory of London-based LSP Pearl Linguistics Ltd., which incorporated in 2004 and filed for bankruptcy in early March 2017, is quite the opposite. Pearl had been fulfilling public contracts for many years and “was seen as one of the most successful language businesses in the UK”. In 2016, Pearl started to make it onto the lists of agencies approved for public service language framework agreements.
In January 2017, Pearl was announced as one of fourteen successful bidders selected as providers on the NHS Shared Business Services’ (NHS SBS) interpretation and translation services framework agreement for hospital trusts and doctors’ surgeries. The £100 million agreement, from November 2016 to October 2018, is reported to have saved 25% on the previous arrangement. In February 2017, the company was awarded the UK complaint handling award 2017 for the public services and health care sector, just one week before it declared itself bankrupt.
Notified of the bankruptcy one day earlier, hospitals and surgeries were left scrambling to avoid disruption and to find interpreters to fill bookings that had been made. A number of other agencies stepped in to cover this and other contracts Pearl held, minimising the disruption.
Hundreds of unpaid linguists, even those who have filed claims, are unlikely to recover their losses. For some of them, payments stopped in mid-2016. A far bigger hole, of potentially millions, has been burned into the taxpayer-funded pockets of the National Health Service (NHS).
Days after the bankruptcy, trade union Unite, which the National Union of British Sign Language Interpreters (NUBSLI) is a part of, wrote to the Justice Secretary Liz Truss, urging a review into how “vital interpreter contracts are awarded and how they operate.” Unite expressed concern that “there is ‘a race to the bottom’ in an outsourcing contract culture that is adversely affecting those who require [public] interpreting services”.
Andy Murray from Unite added: “Unite is calling on justice secretary Liz Truss to review the outsourcing of interpreter contacts, so that a first class service is delivered to often vulnerable clients, without a race to the bottom when it comes to wages, and terms and conditions for those providing these specialist skills. We are currently taking legal advice relating to the dominant position that these firms currently enjoy.”
In the case of this framework agreement, the contracting authority NHS SBS is a private sector joint venture with Sopra Steria, a European IT consultancy, which holds a large number of UK public sector contracts. Since 2016, NHS SBS has been mired in controversy over the loss of data that potentially puts thousands of patients at risk. Millions of pounds have been spent so far investigating and dealing with the issue.
In March 2017, the NUBSLI reported that it had been given a leaked insolvency document by Pearl Linguistics that “clearly exposes the race to the bottom being forced through by government and the lack of consideration shown for both service users and workers.”
Based on the information contained in the document, the NUBSLI provided two reasons for the insolvency: “ever increasing cost cutting demands from public sector customers while asking more for their money in terms of technology, management and quality. […]. In addition, the Company entered into Framework agreements which forced it to offer low rates without the supplier really knowing whose business they would eventually get”: “the Company started to experience cash flow issues due to the decreasing rates NHS and local authority customers paid.”
The situation has simply proved what many public sector linguists have said for years: such large framework agreements for language services are unworkable. The NUBSLI has since stepped up its #ScrapTheFramework campaign, calling for all such large-scale framework agreements to be scrapped immediately.
NHS SBS was not the only client affected. In February 2017, Pearl Linguistics was awarded the contract to act as a one-stop shop for all translation services for Salford City Council. Although it was not the cheapest bid overall, it was chosen to ensure consistency across service provision. Two other similar bids, offering a one-stop shop option were both at least 15% higher than that of Pearl’s.
Complaints about the rates and terms offered by Pearl to linguists have existed for many years. In 2013, the interpreting signs blog cited it as an example of “agencies, who for many years have ignored standards in spoken language interpreting, are now hellbent on ignoring the standards for sign language interpreting,” offering a poor deal to both deaf people and BSL interpreters. It also accuses the NHS of “not effectively monitoring contracts and absolving themselves of risk by contracting to a third party.”
The commercial nature of such contracts for the large agencies who win them is perhaps best demonstrated by the award of the largest of the three main framework agreements (along with the Ministry of Justice and NHS) in force: the Crown Commercial Service (CCS) framework agreement, running from April 2016 to April 2019, covering translation, transcription, spoken and non-spoken language face-to-face and telephone/video interpreting, and other language services. The agreement combines three separate previous contracts and covers a broad range of public sector bodies, including charities, from the military to the health service and social services. It is worth up to £250 million.
According to the CCS, “The agreement also ensures that public sector organisations that have an ethical and legal obligation, and are bound by the Human Rights and Equality and Diversity Acts, are able to provide equal access to their services regardless of cultural/linguistic background. The objective of the agreement is to provide access to the right quality services at a sustainable price.”
Tendered at the same time as the second Ministry of Justice framework agreement, it was in response to this super-sized broad-scoped agreement that the NUBSLI launched its #ScrapTheFramework campaign in February 2015 and the umbrella group Professional Interpreters 4 Justice (PI4J) launched its manifesto for change.
The agreement was awarded in April 2016 and, at least from a commercial perspective, was hailed a success, as instead of the contract going to a single supplier, it was awarded to five companies working together to provide different lots of the larger framework. Two of these companies: Clarion UK and The Language Shop, also won lots under the Ministry of Justice framework.
The award was hailed as breaking the monopoly of larger companies like Capita and thebigword: “An alliance of these smaller players has organized to outsmart the big powers and de-monopolize the market.” Nonetheless, the new consortium, which includes specialised agencies, such as Clarion UK, the largest sign language interpreter agency, is now bigger than either of the two aforementioned companies.
Many of these “smaller” companies are also involved in other frameworks and partnerships with agencies like Capita. Truly small agencies, excluded from the club of companies named in such contracts, find themselves unable to bid as they cannot meet the onerous terms. The public sector only seeks to contract with a particular type of company, and while rates and quality are driven down as a result in the public sector, this is mirrored in the private sector too. The monopoly is also a monopoly on (the lack of ) adequate quality and rates. Any competition is solely between the small number of agencies to increase their profits and not to improve service.
Globalisation, along with technology, has been a key driver of the language industry. The situation in the UK is not unique and many of the larger agencies hold contracts with foreign governments and international governmental organisations. One of the five in companies the CCS consortium, the guarantor, is the UK division of US military language contractor Worldwide Language Resources. Bringing its military expertise to the framework agreement, it also played a central role in planning the bid, which took over 18 months, and invested around £150,000 into it.
Nonetheless, WorldWide has a history chequered with controversy as well as experience. In 2013, it reached a $5 million settlement with the US Department of Defense for providing untested linguists in overseas combat zones and billing the government for a variety of linguistic services that were not provided. One of the contracts concerned, from 2003, “provided for a lower price than that previously provided under the GSA [General Services Administration] Contract for certain services, and was designed to reduce the costs to the government of acquiring those services.” Whistleblowers brought the allegations to light. Given the problems fellow US military language contractor SOSi has created in the US immigration courts by not paying interpreters and using unqualified interpreters, if at all, this is clearly not a model that should be followed in the UK.
The warnings over the past few years have been prophetic. A small number of translation and interpreting agencies have made a profit and expanded their business at the expense of the very purpose of the contracts and the service they are supposed to provide. The public do not trust public language services, the linguists who provide them do not trust the agencies managing the services, and the government has proved time and again, not just where language services are concerned, that it cannot be trusted to govern the country.
* The registers still exist and are in use.
Hogan-Brun, G. 2017. Linguanomics: What is the Market Potential of Multilingualism?, London, Bloomsbury.
This is Part II 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.