on the world: a view on human rights
A decade of privatisation and cuts to the justice system have inflicted a heavy toll on access to and the administration of justice in England and Wales, from the closure of courts, the decimation of legal aid and law centres to riots at private-run prisons. It has also created a for-profit justice industry focused on financial gain, not the delivery of essential public services. The impact of Ministry of Justice (MoJ) cuts have led it to announce a review of criminal legal aid and the renationalisation of large parts of the probation service.
On the other hand, in October, the MoJ said that it had agreed to extend its language services contract for translation, transcription and foreign language interpreting services, with its main provider, Leeds-based agency thebigword, triggering the first of three one-year extension options to a four-year contract that was due to end in 2020. The contract will now end on 30 October 2021 at the earliest. This is in spite of persistent concerns about the quality and availability of interpreters in courts, in particular, as well as the collapse of one of thebigword’s subcontractors, Debonair Languages, in August 2019.
Justice sector language services were first privatised in 2011 with a single supplier providing spoken (foreign) and unspoken (deaf spectrum) language interpreters in courts and tribunals in England and Wales over a five-year period up until October 2016. Prior to that, courts made arrangements with individual interpreters procured through the relevant voluntary register (spoken/unspoken languages) of professional interpreters. The arrangement with Capita was described as a “car crash” by politicians and was a failure from the start. Lower rates of pay and qualification requirements led to a boycott by experienced professionals and did not incentivise new entrants to the profession.
With both quality and quantity affected, in spite of consultations with interpreter bodies, the MoJ failed to take on board the critical concerns raised and in the second contract simply offered a superficial break-up of the single-supplier monopoly by introducing a separate supplier for unspoken languages and a non-transparent quality assurance procedure. It was also extended to cover the rest of the justice sector – prisons, probation, etc. – to cover the requirements of the Equalities Act 2010 and the EU Directive on the right to interpretation and translation in criminal proceedings. Foreign language interpreting makes up the majority of the contract; outside of the courts, this is mainly provided over the telephone, creating its own problems.
The situation became particularly critical in August when thebigword subcontractor, Bolton-based Debonair Languages, collapsed leaving potentially thousands of interpreters and translators unpaid. One Mandarin interpreter told The Bolton News that she is owed more than £5000 for a long court interpreting assignment in June and July. Efforts are underway to support affected interpreters and translators. As the funds came from the public purse, an inquiry into how the company collapsed and where the funds went would be essential. This is not the first time that a public service language provider has gone bankrupt due to the unsustainability of such contracts.
The interpreters affected have blamed outsourcing for the situation. The National Register of Public Services Interpreters (NRPSI), the voluntary register for foreign language interpreters which was used before 2011 and provides the benchmark for professional public service interpreters, called the way interpreters have been treated by the MoJ’s outsourcing agencies as “nothing short of contemptible” and described the conditions as “Wild West”. It called for “all interpreters to be accredited, registered and regulated by an independent not-for-profit organization” and for it to be mandatory for public service organisations to use that rather than for-profit corporations.
thebigword rejected the NRPSI’s views stating the rates it offers interpreters “are among the most competitive across the industry”. thebigword has long been criticised by interpreters and translators for its low rates of pay while it continues to make growing profits. A major difference between the first and second MoJ contracts is that thebigword has managed to make this public sector contract profitable.
Its claims are not backed up by a recent report by the Chartered Institute of Linguists (CIoL), which found “A marked discrepancy in agency rates between translation (£31) and interpreting (£23) may reflect the relatively low rates of pay available to interpreters working in the UK criminal justice system and the National Health Service”, which is £7 less than court interpreters earned pre-2011. The 2019 Association of Translation Companies (ATC) report found that “Unique to the UK market is the impact that public sector contracts have on pricing. […] public sector contracts to large providers are having an adverse effect on rates”.
Beyond the effect on interpreters and language service providers is the effect on court users. Quantitative data – there are no qualitative data – on court interpreting come straight from the outsourcer without any independent verification. According to the latest such statistics for the second quarter of 2019, the successful completion rate of less common language (of which there are 151) assignments was only 90%; the contractual target rate of 98% for such languages has not been met since 2014. Both Capita and now thebigword have only met this overall quarterly target once in their respective contracts, but this has not led to contract termination for non-performance.
Where parties do not understand or cannot respond in the language of proceedings, an interpreter is essential to guarantee a fair trial. The MoJ is effectively saying that foreign language speakers and the deaf do not have the right to a fair trial in every case.
The latest statistics also show a steep increase in the number of complaints made, largely because court users were not previously made aware of the complaints procedure. Since the last quarter, the most common complaint of “no interpreter available” has subsequently trebled. The outcome of this complaints procedure and quality assurance provided by another agency, The Language Shop, are unclear. No public information is available about annual audits sent to the MoJ, nor the outcome of complaints. The work of The Language Shop remains secretive. Meanwhile, social media abounds with complaints, largely by lawyers. No information has been provided on whether or not contracts will also be extended with it and Clarion, which provides interpreters for unspoken languages.
The hidden costs of the contract lie in the time and money wasted through adjournments, prisoners being left on remand pending the rescheduling of hearings when an unqualified interpreters attends, does not speak the right language or turns up late, if at all. Judges sometimes decide to proceed without an interpreter to save time and money even though this affects both parties’ rights and undermines confidence in the justice system.
The lack of qualified professional interpreters, particularly of less common language, remains problematic. At the same time, the complexity of issues interpreters have to deal with is evolving, particularly as more modern slavery and trafficking cases arise. If the police and others working on such cases need training, how is it assumed that an interpreter can walk into a hearing knowing exactly how to respond and what specialist terms to use? In almost a decade of the current court interpreting arrangements, the MoJ has failed to demonstrate why or how they have been necessary.
A longer, in-depth report on the current situation is available here: https://onesmallwindow.wordpress.com/2019/07/18/where-is-the-privatisation-of-court-interpreting-heading/