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on the world: a view on human rights

A Bid for Justice? Legal Interpreting Privatisation in Europe


Interpretation and translation in legal proceedings is a guaranteed right in Europe for foreign and non-spoken (sign) language users. Only interpreting of foreign spoken languages is considered here, although much of the following applies to legal translation and deaf communities too. Comments welcome on other countries and live situations.

UK interpreters protest outside parliament in 2012

For 70 years, the fair trial right to interpretation in judicial proceedings has been guaranteed in Europe[1] by the 1950 European Convention on Human Rights (ECHR). Article 5(2)  provides that “Everyone who is arrested  shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him”. Article 6(3) provides a minimum right to: “(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) to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. For European Union states, further elaboration was provided in the 2010 Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. A 2018 report found that the application of the 2010 Directive was uneven: “The difficulty is not in establishing the existence of this right, but is rather one of implementation”. 

There are not enough qualified professional legal interpreters, especially for less common languages. Adequate training and qualifications to bridge this gap are often not available. Misconceptions around the work of interpreters have led to a belief that any bilingual or multilingual person can interpret.

Under the guise of austerity, legal interpreting, like other public services, has been subject to heavy cuts. The potential for a miscarriage of justice cannot be underestimated. Rather than address the shortage of qualified interpreters, European governments are increasingly outsourcing the service to large language service providers (LSP). The legal responsibility to ensure fair trials by providing interpreters is entrusted to private commercial companies. They receive a large part of the fee that was previously paid to professional interpreters, disincentivising existing professionals and newcomers to the profession alike. The result is a further fall in the quality and provision of interpreting, and speakers of foreign languages are denied access to justice. 

Public authorities have used contracts with LSPs to source their translation and interpreting needs for many years. Many of these have been small individual contracts by local authorities, police forces and hospitals, for example. The British government upped the game in 2011 when it entered a £168 million (€185 million) 4-year framework agreement to provide interpreting and translation services across the justice sector and a separate 5-year contract for courts with a single supplier. It was the first such comprehensive agreement of this size and scope in Europe. The rationale for this move was to increase efficiency and keep down costs.

England and Wales[2]

Prior to this, interpreters were sourced directly via a list of qualified professionals held by a voluntary regulator under a National Agreement. The contract entailed a large fall in the fees paid to interpreters and the qualification requirement was reduced to attempt to address the shortfall in interpreters. Professional interpreters went on strike and boycotted the contract leading to immediate chaos; in the first month of the contract in 2012, just over half of all interpreting assignments were fulfilled. This first agreement, which ended in 2016, was roundly attacked by interpreters, lawyers, judges and was the subject of at least three highly critical parliamentary reports. Legal interpreting is no longer a sustainable profession, leading many professional interpreters to leave the profession; the low rates of pay are an inadequate incentive to attract enough replacements.

The second framework agreement expanded the scope of the agreement to prisons and other entities. Otherwise, only cosmetic changes were made and new suppliers brought in. A non-transparent quality assurance component in this contract has meant it has not been subject to any meaningful scrutiny like its predecessor. This is not an indicator of success: the contractual target of 98% fulfilled assignments per quarter has only ever been reached once under both contracts. Rather than cancel the contract to address this ongoing breach, the second agreement, which was due to end in October 2021, has been extended by one year. The second agreement has helped the supplier, thebigword, acquire a profitable near-monopoly on public sector interpreting in the UK.

In spite of the failings, similar framework agreements have been negotiated in other areas of public service interpreting. Separate to the judiciary, the UK police are currently attempting a centralised tender for interpreting services. For court users, it has meant a loss of trust in the legal system and rising costs of adjournments, retrials and suspects held on remand.

Denmark

Denmark repealed its law on state-authorised interpreters and translators in 2016, although a certification body still exists. It then followed in the UK’s footsteps in November 2018 by awarding a 4-year DKK 520 million (€70 million) contract to a single supplier, EasyTranslate, to provide interpreting and translation services for the Ministry of Justice, Ministry of Immigration and Integration, among others. Imposing fees of up to 60% less for translations and 15-25% less for interpreting, over 600 interpreters signed a petition stating that they would not work under the contract when it took effect on 1 April 2019. Like the British suppliers, this company claimed that it had lots of interpreters eager to work for it but the professional boycott meant that this contract got off to a similar bad start when interpreters could not be found for some languages. 

In one police district, out of 1034 requests for interpreters, 134 complaints were received in four and a half months. The problems included interpreters not attending or lacking skills to carry out assignments, leading to police interviews and court hearings being cancelled. Other problems cited by the director of police were “subpar contract delivery, wrong interpreter classification, poor handling of complaints, and the failure to establish a functional training program for interpreters”.

Unlike the UK contract, EasyTranslate’s contract was terminated early by the end of 2019 due to non-performance. This early termination has proved costly for the Danish National Police who have also had to draw up a temporary list of interpreters and rates of pay.

Part of the rationale behind this contract was to transfer responsibility for a list of around 1800 legal interpreters and translators used by the courts and police to a private LSP from the National Police, which lacks neutrality as a party to prosecutions. The qualifications of the interpreters on the list are not always verified. As academic Tina Paulsen Christensen points out: “The main problem with quality assurance does not lie only with the individual company. The roots of the problem is found in part in the fact that Denmark has neither a state-approved interpreter training nor certification scheme”.

The Netherlands

Under the 2007 Sworn Interpreters and Translators Act, the courts, police, Immigration and Naturalisation Service, and other judicial bodies are “obliged to use sworn interpreters and translators” who must be certified, are bound by a code of ethics and are listed in an official register. In practice, qualifications, and thus certification, do not exist for some languages and whether sworn interpreters and translators are used is not always monitored. The Dutch government has used outsourcing for the past two decades to procure interpreting services. These contracts have grown increasingly larger, making it impossible for smaller agencies to compete in tenders, limiting competition, while at the same time driving down the rates paid to interpreters which have not risen since the 1980s.

In late 2019, the Dutch Ministry of Justice and Security, on the premise of becoming compliant with the 2010 EU Directive, announced that it was launching a series of tenders that would see legal sector translation and interpreting privatised and outsourced to commercial companies. At the same time, the Ministry decided that the lack of qualified professional interpreters was best addressed by opening the profession up to unqualified bilingual and multilingual people, contrary to the quality requirement of the Directive.

In response to the plans, in January, over 1500 of the 2600 interpreters registered in the Netherlands started a general strike, opposing the proposed cuts to their already low fees through the use of agencies and unqualified interpreters. Over 3000 people also signed a petition opposing the plans. The Justice Minister consulted with interpreter groups and trade unions but nonetheless announced in May that it was going ahead with the tenders from October 2020.

The strike continues and the future steps to be taken by Dutch interpreters remains to be seen. Like professional interpreters elsewhere, they have been badly affected by the Covid19 pandemic and have seen other sources of work dry up, another factor pushing many to leave the profession.

Another way in Norway?

Outside of the EU, the Norwegian police have chosen to address the lack of interpreters through a series of contracts using multiple suppliers chosen by the country’s 12 police districts over four years at a price of NOK 140 million (€ 13 million). The tender method used has allowed for greater competition and privileged quality over prices. Previously, individual districts tendered small contracts for their own interpreting needs. Nonetheless, while like other European states Norway has certified interpreters and a State Authorisation Exam, this does not cover all languages or demand. With less than one third of interpreters holding a recognised qualification, the contract fails to address this crucial aspect.

In the Republic of Ireland, where an earlier framework agreement worked its way up to the Supreme Court in litigation drawn out over a period longer than the intended contract term, a new agreement for all public services was tendered in May but is currently suspended and not accepting bids following legal proceedings.

Fundamental flaws

Looking at the problem from the skewed angle of austerity, governments have turned to the market and tech solutionism for answers. The objective is to guarantee access to justice and a fair trial, from the point of arrest, or the start of legal proceedings in non-criminal cases; this is not a market commodity. The quest for corporate profits is poles apart from the need to provide good quality public services. thebigword demonstrated this when even before the start of the Covid-19 lockdown in the UK, it took advantage of the situation to impose a 15% cut on fees paid until a trade union intervened, in spite of it receiving its funding as normal from the Ministry.

The fundamental obstacles to accessing justice remain unchanged. Interpreting skills do not consist of the ability to speak multiple languages alone but include professional skills, such as confidentiality, impartiality, accuracy, acquiring the trust of parties and familiarity with complex legal language, among others. Training must also be provided on the latest issues and developments in the legal field. While lawyers and police officers spend years of ongoing study and training in their field, interpreters are expected to intuitively understand new issues such as modern slavery, cross-border gang crime, etc. Without training for interpreters who play a crucial role in communicating with victims and suspects alike, such issues cannot be tackled seriously.

The commercial route favoured by European governments, of using middlemen agencies offering little more than digital solutions, has not only pushed experienced and qualified interpreters out of a profession due to the fall in rates but has disincentivised newcomers who see no point in wasting time and money on training for a profession that pays so poorly. The outcome is fewer professional interpreters and a poorer service all round than to start with.

The monopoly often held by suppliers means there is no need to innovate and improve the services they offer: “When a provider essentially has a monopoly over language services, the quality of those services is bound to go down”. This practice also has the effect of excluding smaller agencies from contracts that they do not have the means to compete on, having a greater impact across the sector.

In some states, like the Netherlands, the requirements to use certified interpreters is limited only to the legal field. Good quality interpretation services are necessary in all public services and would help to promote the work of interpreting professionals and foster the need for training.  

The rise of anti-migrant populist politics across Europe and policies such as the “hostile environment” in immigration laws in the UK seek to silence the very people interpreters facilitate communications for, thus making their role in fact far more necessary.

Austerity measures have seen sweeping cuts across justice sectors in general. As mainly self-employed independent workers, interpreters are an easy target. The outcome of these unpopular contracts, however, has been to create large levels of solidarity, as demonstrated by the effective strike action and petitions.

In a 2012 article, Danish academic Bente Jacobsen considered the problems of public service interpreting in Denmark. Her recommendations are broadly relevant to all European states:

“(1) a national training programme for community interpreters, preferably at BA level, but at least one that focuses on language and interpreting skills, (2) a national certification programme for translators and interpreters which list their skills and specialty areas (court interpreting, healthcare interpreting, etc.), (3) a national register of certified translators and interpreters, and (4) a requirement that public institutions and authorities use only certified interpreters. The implementation of one of these measures alone will not improve the present situation.”

In addition, users of interpreting services must be “ required to use only certified interpreters, [or] community interpreters will have little incentive to train or achieve certification”. Solutions must come from and remain within the public sector.

The solutions offered and invested in thus far respond to problems that do not exist, creating new issues while not addressing the old ones and hampering the administration of justice. Public money is not being spent on public services but on diverting public responsibility into unaccountable private hands.

[1] Except Belarus, which is not a Council of Europe member. The wording in the 1966 International Covenant on Civil and Political Rights (ICCPR) is similar.

[2] The United Kingdom has three separate jurisdictions: England and Wales, Scotland and Northern Ireland.

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