on the world: a view on human rights
The coronavirus pandemic has shattered the myth that the decade-long programme of austerity and public service privatisation in the United Kingdom have increased efficiency or saved money. Instead, applying a market logic to essential public services in a race to the bottom has stripped whole sectors bare. The health service is not alone: legal sector cuts have undermined open justice and the right to a fair trial, some of the oldest principles of English law.
Those affected include spoken (foreign) and non-spoken (deaf spectrum) language court interpreters in England and Wales who, since 2011, have seen their fees and qualification requirements slashed following privatisation through a framework agreement with a single supplier. Court interpreters ensure a fair trial and access to justice for vulnerable people.
The immediate and lasting result was a fall in quantity and quality. Concerns raised by lawyers, judges, MPs and interpreters were ignored when, in 2016, the Ministry of Justice (MoJ) superficially rejigged its faulty monopoly into separate suppliers, for 1) spoken language interpreting, written translation and transcription, 2) non-spoken languages and 3) a non-transparent quality assurance system in a second agreement, which was extended to the rest of the justice sector (e.g. prisons, probation).
This controversial arrangement was upheld in August 2019 in an Upper Tribunal appeal on the provision of interpreters in immigration tribunals (at 41) as “satisf[ying] the requirements of justice”:
In practice, this is seldom what happens. Spoken language interpreters are provided by thebigword (tbw), a language service provider with a near-monopoly on public service interpreting, known for very low rates of pay and questionable quality, thus preferring to highlight the size of its offering.
The quality assurance provided by The Language Shop (TLS) lacks transparency; its annual audits of service provision have not been published: “There does not appear to be any published evaluation of the system of quality assurance and it is unclear whether standards have improved in practice.” Unlike their predecessor, tbw and Clarion, which provides non-spoken language interpreters, have not been subject to scrutiny.
MoJ statistics also show that immigration tribunals are the least likely to use the framework agreement, mainly contact interpreters “off-contract” (directly), and make the most complaints.
Prior to the introduction of the 2011 framework agreement, courts and law firms contacted registered qualified interpreters directly via the voluntary regulators for registered professional spoken (NRPSI) and non-spoken (NRCPD) language interpreters. In its most recent annual review, the NRPSI called for “regulatory status for public service interpreters”. The NRPSI, which has a rigorous registration and transparent disciplinary process, has been critical of quality assurance provided by companies with a commercial interest. In a recent manifesto on public sector language services procurement, the Association of Translation Companies (ATC) sought to address some of the issues raised by such large framework agreements, including “work towards a regulated environment, with more effective governance and oversight of the provision of language services at all levels”.
MoJ statistics from the second half of 2019 to the first quarter of 2020 show that while demand is increasing, the framework agreement continues to miss its target of 98% completed requests per quarter, which has only been met once since 2016. The completion rate for non-DPSI languages (151 rarer languages for which there is no qualification requirement), covered by tbw, has been 86% since Q4 2019, the lowest ever for this contract – equivalent to no interpreter in one in seven hearings where an interpreter for these languages is required. Complaints made relate mainly to no interpreter being available.
The Covid19 pandemic has posed new challenges for court interpreters. Many come from the ethnic minority communities they interpret for, and are at greater risk from the virus, as well as due to existing and underlying health issues of their own or those in their households.
Interpreters from outside of the EU with no recourse to public funds (NRPF) status have found themselves in a more precarious situation since lockdown came into place on 23 March, due to being unable to access benefits once work stopped. For others, largely self-employed interpreters and translators were only included in a government financial support scheme much later than employed workers, a move advocated by the ATC and the NRCPD.
thebigword responded to the pandemic before the lockdown was imposed. On 19 March, it wrote to interpreters informing them that “like most companies, we are seeing a substantial decrease in work” and thus it would reduce “our linguist rates across the board by 15% from Monday 23rd March”, which “would leave some of its interpreters on less than the minimum wage, if not out of pocket, after costs”. Following intervention from the National Union of Professional Interpreters and Translators (NUPIT), the MoJ confirmed that this reduction in rates would not apply to its contract and that thebigword conceded that imposing late cancellation penalties was “was not appropriate in these circumstances and they have committed to ensure that no interpreter will be charged a late cancellation fee if they are unable to attend due to any COVID-19 related issue”.
Undeterred, thebigword later reduced its rates for video remote interpreting (VRI), whose use has recently grown exponentially, in spite of securing extensions of VRI contracts with two NHS trusts. It is also paying remote (telephone/video) court interpreters only for the time they spend interpreting rather than the time they are booked for; hearings may start later than scheduled and conclude much earlier, but the interpreter must make themselves available throughout.
All sectors have had to make unexpected and rapid changes to deal with the pandemic and the lockdown. In the justice sector, this has been the rapid roll out of remote court hearings via video and audio links, facilitated by changes in the Coronavirus Act 2020. The use of this technology in court settings is not new; nonetheless “The largely untested and imperfect system can be slow and unreliable”.
Concerns have been raised about the impact on human rights, particularly on the most vulnerable court users, who include those who require an interpreter: a survey by the NGO Fair Trials found that “COVID-19 is causing lengthy and indeterminate delays to criminal proceedings, and custody time limits are being extended routinely due to those delays, meaning defendants are spending longer in pre-trial detention.”
The decision to go ahead with a hearing that requires an interpreter remains at the discretion of the judge and varies from case to case. In some criminal cases, without interpreters to assist, defendants are making decisions they do not understand, being charged without an interview and are unable to engage with situations that affect their future and their liberty.
Technological problems abound in hearings with or without interpreters. The first remote hearing from Grimsby Magistrates’ Court required a Slovak interpreter who could not initially access the court via Skype. An attempted murder case at Maidstone Crown Court was delayed after a Vietnamese interpreter on the telephone could not hear the judge or the counsel “who were present on Skype”.
Some courts have drawn up guidance on the use of interpreters. The differences in the guidance given by the family court between April and June show just how rapidly the situation is evolving with respect to technology and knowledge within the courtroom (see below).
In spite of guidance, decisions on whether to allow a hearing to go ahead when an interpreter is required are not easy to make. In one study on the family courts, “There were many concerns expressed about the difficulty in conducting remote hearings when interpreters were involved, particularly if more than one interpreter was required”. For example:
With many hearings cancelled, delayed or unsuitable for video/audio link with an interpreter, between the end of March and mid-June, around 4000 video and telephone spoken interpreting hearings and 288 non-spoken VRI hearings were carried out, far lower than the average of 700 cases a week involving interpreters across all courts and tribunals pre-pandemic. The existing backlog in the courts reached almost half a million cases by mid-May in the magistrates’ courts alone. In spite of the physical reopening of some courts, the roll out of remote hearings is likely to see more interpreters involved in virtual hearings. With the quality of interpreting (lack of professionalism, inaccurate interpreting, interpreting the wrong language or dialect) already an issue under the MoJ’s framework agreement, monitoring will be essential to track issues such as poor interpreting quality, which will be harder to recognise but will prejudice hearings.
The use of audio and video technology is not new for tbw, which has used telephone interpreting extensively in prisons and the probation service; the same poor quality issues exist, including an interpreter hanging up half way through a call. In one report on immigration removal centres (IRCs), a recommendation was made that “The Home Office and Ministry of Justice should conduct a review of the quality of interpreter services in IRCs”.
The current MoJ language service framework agreement was due to expire in October 2020, but has been extended for an initial one-year period to October 2021. The MoJ has also issued a prior information notice of its intention to procure translation and transcription services, a part of the current agreement provided by tbw. The decision to sever the smallest part of the language services agreement seems odd but indicates that there are no plans overall to alter the for-profit treatment of public services. The MoJ’s framework agreement has offered little more than an expensive digital platform for interpreter bookings without addressing the lack of qualified professional interpreters it was allegedly supposed to.
Years of privatisation, cuts and closures have caused the current chaos in the courts, including for court interpreters. Vulnerable people continue to face the brunt of this situation, with some cases scheduled to be heard in 2022 at the earliest. The problems in the justice system run far deeper than the tech solutionism offered by the likes of tbw: public services need people-focused solutions.
Family Court guidance April 2020:
Family Court guidance June 2020: