A Breakdown in Communication: Court Interpreting Privatisation
Almost seven years have passed since the privatisation of the provision of foreign language and deaf and hearing impaired court interpreting services across England and Wales. On the premise of reducing costs and increasing efficiency, the Ministry of Justice (MoJ) entered a 5-year framework agreement in 2011 with a single supplier. Applying a market logic that works well for commodities but not public services, this effectively created a commercial monopoly out of a public service that had previously been provided by courts and lawyers directly contacting qualified professional interpreters from voluntary regulated registers.
The consequent fall in the standard of interpreting as well as unsustainable conditions of work and pay has led to a longstanding boycott by professional interpreters resulting in chaos in the courts and reliance on unqualified interpreters.
Court interpreting is an essential public service that ensures the statutory human right to a fair trial for all parties where communication is an issue. Currently, even if an interpreter does attend, there is a good chance that the parties will be denied due process. Hundreds of cases require the services of an interpreter daily. The possibility of miscarriages of justice and mistrials is thus greatly increased. The biggest casualty so far is quality.
The first framework agreement was the subject of all-round criticism from the courts, interpreters, lawyers and the subject of several critical parliamentary reports. Ignoring the criticisms and suggestions made, the MoJ made cosmetic adjustments to the second framework agreement, in force since 31 October 2016. It sought to break the single supplier monopoly by introducing two: one for foreign language interpreting (thebigword) and another for deaf interpreting (Clarion) services, as well as quality assurance provided by the Language Shop.
This four-year contract, with broader coverage, is worth £232.4 million. Over the past twenty months, the same quality issues and monopolistic tendencies have persisted.
Suppliers are bound to meet a “success rate” of 98% completed interpreting assignments. The latest MoJ statistics published in June 2018, covering up to the first quarter of 2018, state the overall target has been met almost consistently since the second quarter of 2017. This translates as almost one dozen cases each day in which the interpreter is absent or late.
In the first quarter of 2018, the overall rate was 97.8% from 39,600 requests made. The target was met for “standard” languages, but for rarer languages, the rate was far lower at 89.9% and special (deaf) services fell to 95.2%, down from a typical rate of 99% throughout most of 2017.
Such data only offers qualitative statistics taken from portals run by suppliers; these have never been verified independently.
In qualified terms
The MoJ has also updated its “Guide to language interpreter and translation services in courts and tribunals”, reclassifying “rare” languages, of which there are 145 (up from 126), from Acholi to Zulu, as “languages permitted exceptional qualification requirements’ (languages without DPSI, Diploma in Public Service Interpreting)”. For some of these languages, no qualification is available.
This reclassification and the qualifications required raise legitimate questions: what defines a “sufficient ability to communicate”? Given the high (often postgraduate) level of qualification required, coupled with the very low rates of pay, how can the MoJ and its suppliers claim that their interpreters are suitably qualified? As recently as June 2018, the MoJ claimed to have safeguards in place to ensure interpreters are suitably qualified and vetted. Yet, in 2014, an independent review of quality arrangements under the previous framework agreement found that less than half of the registered interpreters were suitably qualified in spite of claims to the contrary.
Particularly with a boycott by the majority of qualified interpreters, how is it possible to fulfil almost all standard language requests when, in some cases, demand far outstrips supply? The disincentive offered by the current system discourages new qualified entrants to the profession. The “standard language” classification also covers a broad variety of language variants and dialects which can be mutually incomprehensible. The current reference to interpreters as “language professionals” may indicate that they are not necessarily the former.
The latest MoJ statistics state that complaints fell in 2017 and are currently made at a rate of 1%. Independent quality assurance is supposed to be provided of the work of both thebigword and Clarion interpreters by the Language Shop. Complaints can be made via its website. It manages the MoJ’s register of interpreters and conducts an annual audit of suppliers.
According to the Electronic Immigration Network, however, “There remains little evidence that the new system of quality assurance will improve standards in practice” or that “the serious concerns raised under the previous MoJ Framework Agreement […] have been properly addressed.” According to the MoJ, “The complaint rate is monitored closely as part of a robust contract governance processes. The rate remains low which suggests there is no systemic issue with the quality of interpreting provided.”
According to a Freedom of Information request, up to September 2017, the Language Shop carried out 1597 assessments, of which 15% failed on the quality aspect. The consequences of failure is unknown. Furthermore, with the agreement soon to enter its third year of operation, no audit information has been revealed. Through a classic ruse, the government has maintained the monopoly created by the agreement but has compartmentalised responsibility so that neither it nor its suppliers can be held responsible for anything as no one has overall control.
The fewer complaints made may reflect the lack of expectation many service users of receiving a quality service. With the government claiming that the current agreement is a “success” and “works effectively”, complaints are clearly not being heeded in any case.
On the other hand, complaints on social media and in the press of interpreters not turning up, turning up and then being unable to speak the foreign language, English or both, interpreting incorrectly and incomprehensibly or other court staff being asked to replace them, are plentiful.
Winners and losers
The 4660 interpreters registered under the current agreement are paid less than they were previously. In view of the high levels of qualification and experience supposedly required, the low rates are hardly worth anyone’s while. Lawyers, judges and parties to proceedings remain dissatisfied with the service. For court users, very little has changed over the past seven years.
On the other hand, by the end of 2017, the MoJ claims to have saved £48.2 million under the two agreements. Such savings do not include the cost of holding defendants on remand when no interpreter is available or the cost of adjourning and rescheduling trials.
Unlike its predecessor, the agreement has been highly lucrative for thebigword too. The agreement is one of the “world’s largest language service contracts”, with thebigword claiming the value of its contract with the MoJ is £120 million. The contract helped the company’s turnover soar to £59.7 million in 2017 from £42.6 million.
If the company’s website claims it has a “solid track record in supplying court interpreters”, that is because it also states it is “the sole provider” for the MoJ, having taken over the monopoly held by its predecessor, with the exception of deaf services interpreting. As the only company included in all of the government’s three large language framework agreements, it has an effective monopoly over public service interpreting for foreign languages and is “already the UK’s largest government supplier of interpreting services”.
Long known for its poor rates and term of work, the company is able to dictate the rates paid to public service interpreters. Focused on world domination, thebigword seldom makes any claims about the quality of the services it provides, just the scale of them. The fact that the company is all about winning contracts and eliminating commercial competition and not at all about providing a quality public service – where the issues interpreted could be a matter of life and death – should raise alarm bells.
Public sectors cuts and austerity as a pretext for the outsourcing culture at the Ministry of Justice have taken their toll across the whole justice sector. In action that garnered slightly greater publicity, on 1st April 2018, the Criminal Bar Association advised its members to refuse to take on new legal aid cases and take part in walkouts; more than 100 chambers took part and the impact was felt immediately, in protest at the effect of legal aid cuts and the new pricing system for barristers’ fees. The protest affected serious cases as well, including murder.
Many of the complaints were similar to those made by interpreters: the pay structure is impeding access to and progress in the profession as well as the quality of the service provided and puts the future of the profession as a whole at risk. The action was halted on 24 May when the MoJ offered an additional £15 million in funding. Concessions offered to interpreters by the MoJ in 2013 did not effectively improve the service for interpreters or the courts and were rejected by the majority of interpreters.
Perhaps the most dangerous manifestation of the MoJ’s passion for outsourcing is the appointment as junior minister on 14 June 2018 of Edward Argar, a former UK and Europe public affairs at Serco, which runs private prisons, immigration detention centres and a prisoner escort service. Serco holds contracts “worth £3.6 billion and is under investigation by the Serious Fraud Office over a former deal with the company relating to electronic tagging of offenders”, for allegedly overcharging its services. The MoJ has defended his appointment, in much the same way as it has consistently defended contracts made with other outsourcing companies.
Justice is not a commodity and its value cannot be quantified. With the MoJ’s efforts to streamline court proceedings to save costs, court interpreters are also affected by the increasing use of video links and remote interpreting to communicate with parties in and outside of court. As the issue has become one of meeting quantitative targets at the expense of quality, it appears that the MoJ and its suppliers are alone in thinking that justice is not served, but bought and sold.
As stated recently by Lord Judd in the House of Lords: “It is not just a matter of making sure that an interpreter is there—the quality of the interpretation is essential. Surely with the whole principle of the quality of justice, and of justice being seen and felt to be done, one cannot overestimate the importance of interpretation and its quality.”