Lost in privatisation: Capita, court interpreting services and fair trial rights
February 20, 2014 — Comment
Written by Aisha Maniar
A translator and human rights activist analyses the ongoing issues thrown up by the privatisation of court interpreting services by the Ministry of Justice.
Next year marks the 800th anniversary of the Magna Carta, arguably one of the most important legal documents in the world, guaranteeing the right to a fair trial. That right is also ensured under Article 6 of the European Convention on Human Rights, which includes the minimum right of a defendant ‘to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’ and ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’ The right to interpretation also applies to complainants. These fair trial rights are now under threat in various ways in modern Britain, particularly through plans to privatise legal aid services and the privatisation of court interpreting services, the privatisation framework agreement for which became operational on 30 January 2012.
The framework agreement replaced a system governed by a National Agreement whereby interpreters, who are largely self-employed and work independently, are selected from the National Register of Public Service Interpreters (NRPSI), the UK’s independent voluntary regulator for the interpreting profession (formed in 1994). This system, introduced following a number of miscarriages of justice related to a failure to appreciate the language needs of criminal justice system users, functioned adequately until the beginning of this decade. But in August 2011, following a public procurement procedure, the Ministry of Justice (MoJ) signed a five-year, £90 million contract with a small private language service provider called Applied Language Services (ALS). Before the contract went live six months later, ALS was acquired by Capita, a private company notorious for its large stake in the public sector and its ability to both secure and mismanage public contracts. Both the MoJ and ALS deny that they knew at the time of signing the contract of the imminent acquisition of ALS by Capita.
A failure to heed the warnings and advice given by the very interpreters who are essential to the provision of such a service, along with a failure to consider what would be involved in managing such a large contract, meant that the new system fell apart before it even began. Most of the over 2,200 qualified and highly-skilled interpreters registered with the NRSPI, who work in over 100 languages, decided to boycott the new arrangement, which both cut their pay and downgraded the level of skill required to provide the service. As a result, in its first month of operation in February 2012, just 67 per cent of interpreting assignments were fulfilled. Interpreters failed to turn up, delaying all kinds of legal hearings and leaving defendants on remand for weeks, sometimes simply because no-one had been allocated to interpret for them, and courts and judges reverted to the old agreement, kept as a contingency plan, contacting interpreters through the register. Two years on, over 85 per cent of qualified court interpreters are reportedly still boycotting the agreement.
Although the agreement set a target to fulfil 98 per cent of interpreting assignments, that target has yet to be met, effectively meaning that Capita has been continuously in breach. Statistics published by the MoJ in March 2013, taken from Capita and covering the first year of the agreement, show that out of over 130,000 requests made for language services covering 259 languages, there was only a 90.2 per cent ‘success rate’ for the whole period. Indeed, at the end of the first year, in January 2013, just 86 per cent of assignments had been met, meaning that in almost one in seven hearings where an interpreter was necessary, none was provided.
The agreement fared little better in its second year, and cancellations and disruptions to court proceedings continued. In May 2013, a judge in a quadruple murder trial called the system a ‘complete disgrace’ when a Mandarin interpreter failed to attend for a defendant to enter a plea; the court clerk had been told that it was not worth the interpreter’s time financially to attend the hearing in Nottingham. The hearing was postponed until July. Again, in November 2013, a judge at Bradford Crown Court described the failure on two occasions to provide a Polish interpreter as ‘wholly unsatisfactory’ in a sentencing hearing for two women who had pleaded guilty in March to keeping a brothel; the judge was told sentencing would have to wait another week.
The need for courtroom interpreters
Interpreting services are used mainly in criminal and immigration proceedings. Interpreters have played a crucial role in a number of major cases over the past year, including child cruelty, trafficking and murder. Without an interpreter, none of these cases would have seen justice. The interpreter’s task in interpreting accurately and without prejudice, taking into consideration the social, cultural and behavioural codes of two languages and cultures is no small feat; it takes an exceptional amount of skill and ability. The interpreter’s role in the final verdict is by no means incidental or marginal.
A foreign language speaker who can speak some English may sometimes ask for an interpreter to mitigate the difficulties often faced by giving evidence in court or standing trial, particularly if they are asked to relate traumatic incidents. The failure to provide such a service, which sees trials delayed, cases reheard and prisoners held for extended periods on remand, is not only an additional unnecessary cost to taxpayers but also undermines the credibility of and confidence in the justice system.
Where an interpreter fails to attend, judges may file wasted cost orders against the supplier, Capita, if the non-attendance is evidence of ‘serious misconduct’ such as negligence. So far, only eleven such orders have been filed, totalling £7,299. In March 2013, Capita won an appeal against ordered costs of £23.25 for interpreter non-attendance, as its failure to provide a Lithuanian interpreter was considered a one-off, and not deliberate or negligent. Nevertheless, the judges dismissed Capita’s argument that it only needed to deliver 98 per cent of the time, as per the agreement: ‘the provision of an interpreter where either a witness or a defendant does not speak English (or Welsh), is essential. Without one a case cannot proceed […] It is simply no use to a court having an interpreter there on 98% of occasions when interpreters are required, because 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.’
‘Saving public money’
The complaints have continued from all sides: interpreters, courts, lawyers and politicians. A damning report by the National Audit Office (NAO) on the procurement and performance of the agreement up to July 2012 was followed by reports by the parliamentary Public Accounts Committee (PAC) and the Justice Select Committee (JSC), which were both highly critical of the procurement and performance of the contract, describing the agreement as ‘shambolic’. The JSC observed that while the old system had its own problems, it was not fundamentally faulty. The Committee also condemned the government ‘edict’ which told court staff not to participate in its online consultation about the changes.
The MoJ’s response, published in April 2013, rather than paying attention to the qualitative issues raised by critics, emphasised savings and ‘better value for money for taxpayers’. During subsequent discussions with interpreter organisations and professionals, it offered a new package to entice interpreters, including a 22 per cent pay increase and other improved terms, pumping a further £2.8 million of public money into the agreement, while conceding that performance ‘under the contract has not been of a satisfactory level’. As yet there is no evidence either that qualified interpreters have been won over by the new package or that the contract offers better value for money for taxpayers.
The MoJ claims that the contract has led to savings of £25 million over the past two years, while Capita Translation and Interpreting reported a sharp fall in its profits after taking on the contract in 2012, with a steep rise in operating costs. Having failed to impose contractual penalties for non-performance in the first few months of the agreement, the MoJ fined Capita over £46,000 for ‘fatal flaws in its court interpreter service between May 2012 and November 2013’ – the maximum possible under the contract, which PAC chair Margaret Hodge MP referred to as ‘peanuts’ in view of the size of the contract and the level of non-performance.
During the parliamentary debate on the issue in June 2013, Sir Alan Beith MP, chair of the Justice Committee, stated that while the MoJ has emphasised cost-effectiveness and efficiency, ‘the principle must be to provide the same level of service. The Government signally [sic] failed to achieve that objective’; it had failed to achieve ‘any improvement in service to the courts.’ ‘The standard of court interpretation needs to be restored, preferably by bringing back those whose experience can return the service to the standards that the courts used to expect,’ he added. Alan Johnson MP, who also praised the achievements of the old system, concluded that ‘justice and the right to a fair trial have been seriously compromised as a result of this debacle.’ The only response from then justice minister Helen Grant was again to emphasise the savings that the MoJ had made, as opposed to improvements to the service.
Dodgy figures, declining standards
The latest statistics show the ‘success rate’ to have been around 94 per cent by the end of September 2013 (still 4 per cent below the contractual target). There are unexplained discrepancies, too, in Capita’s statistics. The MoJ’s most recent statistics, published in January 2014, show that 237,700 interpreter requests were fulfilled in the period between 30 January 2012 and 30 September 2013. That is over 400 per day, yet in 2012, then justice minister Lord McNally stated that the courts receive some 800 interpretation requests per day. How can this discrepancy be accounted for?
The current agreement makes use of a three-tier system, with Tier 3 interpreters being insufficiently qualified to interpret in court. But according to the progress report by the NAO, there has been a sharp increase in the use of Tier 3 interpreters; by November 2013, they were dealing with 10 per cent of the month’s bookings. Tier 3 interpreters are only to be used as a last resort and lack adequate qualifications. The NAO observed that the quality of interpreters is still not adequately assessed. Not surprisingly, complaints went up in the first three quarters of 2013. As for value for money, the NAO pointed out that the ‘savings’ boasted by the MoJ took no account of costs of delay and additional work in court cases.
Observing that ‘This is a vital service for ensuring that people who do not speak English as a first language have fair access to justice’, PAC chair Margaret Hodge MP invited the MoJ and Courts Service to speak to the committee again in January. The committee criticised Capita’s failure to improve the service, pointing out that it had failed to fulfil over 23,000 requests, and the MoJ’s failure to test the market before putting an extra £2.8 million into the contract in May 2013. Was it really value for money? MPs asked. Hodge’s view was that Capita ‘has not succeeded in this contract’. Asked whether the MoJ had considered terminating the agreement, Peter Handcock (CEO of the Courts and Tribunals Service) replied he had thought of it at the beginning but would not contemplate that now as the service was satisfactory. Why is the MoJ still considering making further contracts with Capita, asked the committee, when it has clearly failed in this case.
More criticism – and more contracts
Now in its third year, the agreement appears ever more unsalvageable, particularly considering the decline in standards and the continuing boycott by professionals. Beyond court interpreting services, the issue has wider ramifications for the outsourcing of legal services by the MoJ; the emphasis on saving money may be appropriate in a private corporate setting, yet these are public services paid for and in the service of the wider public, where quality matters. During the June 2013 parliamentary debate, Lorely Burt MP questioned whether the MoJ is ‘trying to deliver an important service at the potential expense of quality’. Jeremy Corbyn MP observed that ‘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.’ Indeed, Capita is not accountable to the public (who pay for the service), but to the MoJ with whom it is has a contract. Ian Swales MP called it ‘a business to win a public sector bid or PFI contract and then trade it on. That is how companies really make money, and ALS is a good example of it.’
The MoJ’s relationship with companies like Capita is being called into question, with MPs and interpreters asking time and again why the agreement has not been terminated given its catalogue of disasters. Since 30 January 2012, the ministry has had the option of terminating the contract for non-performance, but has chosen not to. Instead, Capita was named as a preferred bidder for the MoJ’s electronic tagging contract, in a deal that will create £400 million in revenue for the company over six years. Because of fraud by its rivals Serco and G4S, the contract has already been handed to it on an interim basis until March 2014. According to the Law Society Gazette, the MoJ has increased spend significantly with Capita since 2010/11, from £3.9 to £25 million in 2011/12, although as the PAC suggested, the problems in this contract could affect other contracts currently going through the MoJ, such as for probation services and legal aid. Under the pretext of value for money and savings, with a legal system increasingly geared towards those who can afford it, the real victim is the justice system, which is up for sale.
This is an expanded version of an article published on the author’s website, One Small Window, and updates a February 2013 IRR News article, ‘Shambolic and unworkable: outsourcing of court interpreting services’.
References:  The PAC published its findings in December 2012, and commissioned a follow-up report by the NAO, published in January 2014.  According to the NAO update report above.  The MoJ only began collecting data on off-contract bookings from January 2014, so there are no data on how often the courts have contacted interpreters directly.  Hansard HC 20 June 2013, col.304WH.  Hansard HC 20 June 2013, col.307WH.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.