House of Commons - Interpreting and translation services and the Applied Language Solutions contract

Interpreting and translation services and the Applied Language Solutions contract - Justice Committee Contents

5 Explanatory factors for poor performance

64. Our witnesses described numerous factors that they suggested explained the poor performance described in the previous Chapter, ranging from typical teething problems, to the ineptitude of the Department and the provider it had selected, or the reticence of interpreters to accept the new terms, through to illustrations of the Framework Agreement as profoundly flawed. All of these certainly have some element of truth, and in many areas their impact is intertwined. In this chapter we consider the interplay between these factors as we discuss the nature of the Framework Agreement and how it has been operating in practice.

Ordinary 'teething problems'?

65. Mr Wheeldon explained that the MoJ was aware that it could expect initial operational problems in scaling up provision:

"We knew it was going to be hard work and we knew—it was something we were open about—that in the first couple of months there would be problems. We saw that with the northwest police forces and we knew it would happen again in this scenario. I don't think we expected it to the level it ended up at by any means, but we knew that going into it there would be issues and that was something we openly discussed."[118]

66. Mr Handcock agreed. He said: "When you implement a contract of this kind and you are making a fundamental change in the way that you deliver a service into any business, you always need to anticipate that it won't go as smoothly as you planned."[119]

Poor preparation for implementation

67. Our evidence strongly indicates that many of the problems encountered were not adequately anticipated and that scant regard was paid to cautionary advice given to the Department regarding the shortcomings of the Framework Agreement and the potential capacity of the provider during the consultation process.

RUSHED IMPLEMENTATION ACROSS THE COURT AND TRIBUNAL SYSTEM

68. The contract was initially to be rolled-out regionally over six to nine months. The MoJ later decided on a national roll-out and ALS' model of delivery was piloted in North West courts and tribunals in December 2011 at the Department's behest before full implementation on 30 January 2012. In relation to the decision to shift to national roll-out the NAO observed that the pilot in the North-West was unlikely to have been indicative of ALS' capacity to go operational nationwide. For example, the pilot took place over a six week period, including Christmas and New Year: a relatively quiet time for courts and tribunals. This was also a geographical area in which ALS had an established pool of interpreters. In addition, there was no formal evaluation by the MoJ of the arrangements tested. The NAO concluded that the MoJ under-estimated risks when it switched from a regional to national roll-out. The NAO went so far as to say there was "nothing to indicate that a single, national implementation would be successful".[120]

69. We questioned witnesses from the Department about the rationale for the pilot. Ms Beasley explained the decision:

Part of the thinking behind [the regional roll-out] was that we had originally planned to roll out in conjunction with other criminal justice agencies, such as the police and CPS, at the same time. But, when we came to it, it was only the Courts and Tribunals Service that was rolling out, so we anticipated that the roll-out would be less complex…We had undertaken a pilot in the northwest. Bear in mind that we had been working with a number of freelance interpreters for a long time and what we were introducing, if you like, was an outsourced booking process. Previously, that bit was done in-house and we had used freelance interpreters in-house; what we were then moving to was a booking process that was run by ALS. We tested that in the northwest pilot and the results of that were very good.[121]

70. When questioned about the nature of the evaluation, Ms Beasley further explained that, as the pilot was to test the new arrangements for the booking process, rather than the capacity of ALS to deliver what it had promised in terms of a wider pool of interpreters, monitoring was limited:

"My understanding is that the results of the ability to fulfil bookings were monitored and in the northwest pilot they achieved the 98% service level that is in the contract. There was feedback on the usability of the booking portal, and the feedback on that was that it was very good. There were very few complaints. The bits that were kind of new in the model, which was essentially the booking process, had been tested in the northwest pilot, so we didn't see at that point any reason to delay rolling it out further, which would deliver us significant savings."[122]

71. On the other hand Mr Handcock explained that he was conscious of the difficulty for interpreters in moving to new terms and conditions and acknowledged that "perhaps" the pilot should also have involved some "load-testing" of ALS' capacity.[123] Mr Handcock also admitted: "there were a number of questions that we might very easily have asked that we didn't, and had we asked those questions I suspect we would have taken a rather different course on implementation."[124]

72. The decision to opt for a regional roll-out was done partly to prevent regional boycotts, suggesting that the MoJ were all too aware of the scale of serious resistance from amongst the interpreter community. The MoJ was, at best, naïve to view the new arrangements simply as an "outsourced booking process". Interpreters had repeatedly raised significant concerns about the new terms and conditions under which they were expected to work.

DIFFICULTIES IN SCALING UP DELIVERY

73. Capita-ALS also attributed some of the early problems to difficulties in immediate scaling up of delivery.[125] Mr Wheeldon told us that, of private sector providers, ALS had the most experience of delivering interpreting services to the justice sector; experience was necessarily limited as a result of the nature of the previous arrangements.[126] It should be noted that most of ALS' expertise was in translation services rather than interpreting.

74. The NAO believed that the MoJ allowed the contract to become fully operational before it was ready; it found that ALS was held to implementation at the end of January 2012 although it had not by that time registered and assessed sufficient interpreters in line with contractual obligations.[127] Mr Handcock told us that he believed that at the point of roll-out there were more than sufficient interpreters registered to provide the national service.[128] This assumption was based on the number of interpreters that had registered through ALS' booking portal. In the event, a number of those registered "chose not to work under the framework".[129] Mr Handcock did acknowledge to us that the MoJ "should have been more cautious" than it was about levels of registered interpreters.[130]

LIMITED MANAGEMENT INFORMATION TO AID PLANNING

75. On the other hand, the NAO also established that ALS did not have the volume of interpreters ready to work that was specified in the tender. According to Capita-ALS in February there were only 770 interpreters, comprising 52% at tier 1, 26% at tier 2 and 22% at tier 3.[131] This represented a dramatic decrease in the pool of professional interpreters that were available under the previous system through the National Register.[132] Mr Wheeldon explained ALS' lack of preparedness on limitations in the management information available. He explained that limited information was available, for example, concerning the demand for interpreting in the justice system by language and geographical area—something that the new arrangements themselves were intended to address—to enable ALS to plan as thoroughly as Mr Wheeldon would have wished.[133] For example, he recalled that the information provided by the MoJ concerned only some parts of the system, primarily tribunals.[134] Assumptions about the number of interpreters required to service the contract— and the appropriate level of remuneration which we discuss later in this chapter— were therefore based on ALS' existing work with the police and covering first appearances in courts in the North-West, as well as contracts with the NHS and local government, and fee levels in Scottish courts which were 30-40% lower.[135]

76. Other witnesses were critical of the Ministry of Justice for not properly seeking to ensure that ALS was furnished with adequate evidence to inform its planning for implementation. For example, after Mr Wheeldon's testimony Mateusz Kiecz drew our attention to freedom of information requests that he had made in January 2012 to a number of magistrates and crown courts in the Yorkshire area which yielded information on the volume of requests for interpreters and the five most frequently and five least frequently used languages in each court.[136] CIOL told us that no attempt had been made to seek data from the National Register and described the assumptions about the number of interpreters required as a "finger in the wind" estimate.[137]

77. The NAO also expressed concerns about the lack of robust data held by the Department regarding the number of interpreters required and what languages were required to properly inform the procurement exercise.[138] We heard that the need for better information had first been drawn to the attention of the Department over 20 years earlier; both the Runciman Commission and Lord Justice Auld reports recommended an audit trail be kept on the use of, and cost of, interpreters and translators by the courts.[139] The Ministry of Justice submitted to us further evidence that explained that some information was made available in the form of snapshot data from a sample of courts captured over a period of a week. In addition, the specific requirements of justice sector agencies were discussed during the competitive dialogue process.[140]

78. In the past the Ministry of Justice failed to act on the recommendations of two important reports that an audit trail be kept on the volume of use of, and cost of, interpreters and translators by the courts. The process of reviewing arrangements for the provision of interpreting services had been in motion for quite some time before the Department began outsourcing the management of this work. The Department should have planned for the need for better information and taken steps to get it at an early stage in this process.

Contractual compliance

79. Individual witnesses alleged—with varying degrees of force—that in securing the contract ALS had either misled the Government or acted incompetently.[141] Our evidence suggests that ALS failed to provide full and accurate information to the Department about the level of interpreters available and that the Department failed to carry out satisfactory checks. ALS' memorandum submitted to our inquiry on the budget and structure of the Ministry of Justice in April 2012 indicated that the company had 2,500 "experienced and qualified linguists […] actively working" in the system."[142] The numbers given to us by Capita noted above highlight that this was plainly not the case. Neither is this fully explained by the NAO's revelation that there were differences in understanding between ALS and the MoJ regarding what constituted registration.[143]

80. On the other hand, it is evident that some professional interpreters had registered with ALS despite having no intention of accepting work, and others had deliberately registered spoof identities, including a pet rabbit; this exposed the fact that ALS were automatically inviting all those who had registered on the supplier database to accept work, despite the company not having sought verification of their identities or credentials.[144] This continued to be the case until recently: the MoJ estimated that 50 interpreters who had not verified their credentials remained on the supplier list in October; it was agreed with Capita that they were to be removed by the end of November.[145]

81. There were also allegations of data theft from the NRPSI; it is claimed that ALS used these data to falsely register interpreters on its own list.[146] Around 80 cases of data theft were referred to the Information Commissioner's Office (ICO) for investigation. The ICO concluded that Data Protection Act compliance by ALS was unlikely, and the Commissioner required ALS to take certain steps to demonstrate that it was bringing its processing of personal data into compliance with its obligations under the DPA.[147]

82. The NAO found other contractual obligations, some serious, with which ALS were not complying, and that it had not alerted the MoJ to these. These included: server capacity being insufficient to meet demand; a large backlog in assessment and marking after Middlesex University, which designed and was administering assessments, pulled out as a result of difficulties in working with ALS; and many instances where there was no record of qualifications or enhanced CRB disclosures being checked. In addition there was, and remains, no way to assess for interpreting in many languages; ALS' agreement with Middlesex University was only to make assessments available for 32 languages, a small fraction of the requirements of the justice sector.

83. The quality of interpreters that were being provided exposed major problems either with the Framework Agreement itself or with the quality assurance arrangements that underpinned it. We discuss these matters in more detail as we explore how the Framework Agreement operated in practice and the impact that its implementation had on those interpreters that had been providing language services to the courts and tribunals under the old arrangements.

The interpreter boycott

84. As the MoJ were forewarned during the procurement process, professionally qualified registered public service interpreters who previously served the courts and tribunals previously largely boycotted the new arrangements.[148] In May 2012, NAO assessed that only 13% of NRPSI-registered interpreters (301 people) had agreed to work with Capita-ALS; this equated to 20% of ALS interpreters being fully qualified professionals.

85. Capita-ALS described the early operational problems as partially relating to a low level of awareness among stakeholders and a lack of pre-engagement with them, as well as a resistance to the new service.[149] Mr Wheeldon believed that the low number of interpreters agreeing to work with the new arrangements was the fundamental issue that hindered implementation.[150] He admitted that he was aware of interpreters' concerns about the framework agreement, but told us that resistance was higher than expected.[151] Some effort had been made to engage with professional interpreters. ALS had approached professional interpreter bodies and the National Register in an effort to ease the transition to the new arrangements but Mr Wheeldon found that they were reluctant to engage, with the exception of NRPSI and ACPI.[152] Working groups were also held with interpreters that were not members of any of the professional bodies.[153] When it was put to Mr Handcock that low participation rates could have been anticipated he remarked: "No plan ever survives engagement with the enemy, does it? That is the way that these things always work."[154]

86. Professional Interpreters for Justice characterised the boycott of the new arrangements: "[I]t is not an industrial dispute driven by unions or organisations; instead independent self-employed freelancers are demonstrating the power of market forces because they are under no obligation to work for unsustainable pay rates or unacceptable terms."[155] Involvis Ltd, on behalf of the Association of Police and Court Interpreters and the Society for Public Service Interpreting, conducted an online survey of interpreters in August. Nine hundred and sixty five interpreters responded, 85% of whom were registered with NRPSI and 11% were registered with ALS. According to the survey, 95.7% of NRPSI members refused to register with ALS. The most common reasons for this were: lower standards of professional interpreting; low hourly attendance rates; lack of quality assurance; and a poor assessment process.[156] We discuss these issues in more detail later in this chapter.

87. Mr Wheeldon made some serious counter-allegations. He drew to our attention what he described as a "serious problem" with intimidation of interpreters who had agreed to work for ALS, including assaults, spitting and verbal harassment.[157] In subsequent evidence Capita TI documented such instances, some of which had been referred to the police, and explained that although the level of intimidation—which included abusive text messages—had now reduced, there continued to be occasional cases.[158] Ms Lee considered that unqualified or inexperienced interpreters might find it daunting to be observed and monitored by a qualified, experienced, registered professional interpreter, but fully rejected allegations of organised intimidation.[159]

88. The professional interpreter boycott undoubtedly contributed to ALS' difficulties in coping with demand but we do not believe it entirely explains them. The Ministry of Justice and its contractor appear to have buried their heads in the sand. Many of the concerns that interpreters raised regarding the nature of the new operating model were realised during implementation, were utterly predictable, and should have been properly considered from the outset.

The tier-based system

89.  ALS' tender offered to the MoJ an increased pool of "qualified interpreters" by introducing a tier-based system which provided a standardised skill level structure for the categorisation of interpreters and for the subsequent allocation of jobs. The level of qualifications and experience required for each tier is set out in the table below. Table 1 Criteria for working through the Applied Language Solutions justice framework

Qualifications Experience References Assessment Centre

Tier 1 At least one of:

Diploma in Public Service interpreting (DPSI) (English law option)
Certificate in Community Interpreting (CCI, the forerunner to DPSI)
Metropolitan Police test with DPSI (Health or Local government options) or Hons. degree or higher in interpreting
NRPSI registration
membership of Association of Police and Court interpreters
membership of the Institute of Translation and Interpreting
(Police Court Interpreter level).
At least 100 hours public sector
interpreting
References Pass at tier 1 standard

Tier 2
At least one of:

the 'Partial DPSI' (English Law option), comprising all parts of the DPSI except written translation from English
certain English and language-related degrees and diplomas.

Plus:

any degree
exposure to criminal Justice work In the UK or abroad.

At least 100 hours public sector interpreting experience
References
Pass at tier 2 standard

Tier 3

Demonstrable experience In the public sector with an appropriate linguistic background
Formalised basic interpreter training
100 hours public
sector interpreting
experience desirable
References Pass at tier 3 standard

Data Source: National Audit Office analysis of the Ministry's framework agreement

THE IMPACT OF THE TIERED SYSTEM

90. We encountered fundamental objections to the tiering system, which many of our witnesses believed had resulted in a significant lowering of the standards required of such work.[160] Ms Lee, among others, explained the impact of the introduction of the tiered system:

The highest level, tier 1, effectively mimics the previous minimum standards, which, under the National Agreement, represented only the first step on a continuous professional development ladder.
The default setting for HMCTS bookings is now tier 2 interpreters who previously would not have qualified to work in criminal justice interpreting. Tier 2 includes those who are not qualified in written translation—which may be required in the course of interpreting work in this sector—and those who have degrees or language related diplomas which are not recognised interpreting qualifications and which do not constitute training in interpreting legal terminology[161]; this may include those who have failed the written translation part of the DPSI.[162]
No formal interpreting qualifications are required to operate at the lowest level, tier 3, and neither is it necessary to have built up significant experience of public sector interpreting.

91. Individual interpreters and other stakeholder organisations asserted that the implementation of this system has devalued the profession. For example, the International Association of Conference Interpreters stated:

"Interpreting is a profession which, like any other, requires proficiency in specific skills, acquired through training. Oral or sign language interpretation should not be confused with written translation. Since the profession is not legally recognised in the way that doctors, lawyers or architects are, anyone who speaks two languages may offer their services as an 'interpreter'. The difference in results according to the level of proficiency is, however, enormous."[163]

The University Council of Modern Languages, representing higher education training establishments, did not consider that a tiered system of interpreting provision guarantees the level of quality and rigour the justice system demands.[164]

92. As mentioned above, we received evidence of many cases in which it appeared that interpreters with limited knowledge of legal proceedings were appearing in court, suggesting that they had little or no experience of interpreting in the justice sector. Mr Wheeldon stated that the initial intention was that tier 3 interpreters would be used for community work for the police. However, he acknowledged that in practice, interpreters in some rare languages would be assessed as tier 3 but would be assigned tier 1 court work, because there is no tier 1 level professional qualification for many rare languages.[165] He further explained that he saw it as end users' responsibility to determine the tier of interpreter that was most appropriate to the task.[166] The third tier also provided an entry level to the justice sector to new interpreters who wished to become more qualified.[167]

93. Mr Handcock clarified that from MoJ's perspective:

"The contract requires an interpreter to be provided from tier 1 or tier 2. Those are highly qualified interpreters and it is very important that interpreters are properly qualified. There is a lower level of qualification required for tier 3, but there are still conditions attached to being in tier 3. There are occasions, particularly with rare languages or in difficult circumstances when the pool of interpreters is very small, when it might be necessary to use someone from tier 3, still qualified but qualified to a rather lower level. Whenever that happens, the court is asked if it is content to have a tier 3 interpreter, so ultimately it's a decision for the judge. It is always a decision for the judge, actually, whether the interpreting service being provided is adequate, and I am quite satisfied that it is."[168]

94. We asked Capita and MoJ the extent to which tier 3 interpreters were being used, and how often they were rejected by the judiciary. Mr Handcock said that it could be assumed that as the proportion of cases in which tier 3 is offered is only 2% of the total court volume, the judge rejects the use of such interpreters in a very small number of cases, but the MoJ does not keep a record of these instances.[169] Nevertheless, tier 3 interpreters represented 22% of Capita-ALS' supplier list in February.

95. Another potential indicator of deterioration in quality is the number of interpreters that are able to offer services in two languages. We were told that very few people master a second language sufficiently to pass the DPSI; when including multiple languages the pool of NRPSI interpreters only increases by 17%.[170] Yet, according to Capita 48% of tier 1 interpreters, 47% of tier 2 interpreters and 54% of tier 3 interpreters were qualified to interpret in more than one language.[171]

96. Mr Atkinson of the Law Society gave compelling testimony of the importance of properly qualified interpreters operating in courts and the potential difficulties inherent in operating a tiered system:

It is very difficult to anticipate properly what is going to happen in a courtroom. You can make a good guess that, most of the time, this is what will happen, but frequently that changes. You can go along for what might be considered a routine procedural hearing and find that the prosecution say, "We have evidence that your client has breached his bail conditions, we want to bring that to the attention of the court, and we will be seeking a remand in custody", or "Additional information has come to light that makes this case more serious. We've reviewed the evidence, and we're changing the charges", and/or, "We want to review his bail." Those are technical issues that need proper translation to the defendant. Sometimes technical aspects of the evidence are mentioned at hearings that are not the trial. It is very important that the client understands exactly what is going on. I do not think you can adequately and safely—I emphasise the word "safely"—try to distinguish in advance at what level the interpreter should be. They should be fully qualified and able to do the job in all circumstances.[172]

In a similar vein, we heard from solicitor Matthew Scott who described the idea that court interpreters did not need competency in written translation as "fundamentally misconceived" as interpreters may be called upon to translate at any stage in proceedings, for example, a witness statement or a document forming part of exhibits.[173]

SPECIALIST SKILLS AND RARE LANGUAGES

97. On the other hand, we heard that there are some instances when the use of an interpreter from a lower tier, including tier 3, might be justified. Sense explained that for deafblind participants in the justice process, who use a range of communication methods, and for whom there is a shortage of registered interpreters, unregulated but appropriately skilled interpreters were sometimes more suited to their individual needs.[174] Notwithstanding this point, Sense was concerned that the varying nature of interpreting needs of deafblind people was not sufficiently understood by ALS.[175] The Association of Sign Language Interpreters took the opposite view, believing that use of the register of sign language interpreters was imperative.[176]

98. Under the Framework Agreement there is a KPI to have 95% of all languages catered for within a 25 mile radius, providing an indicator of ALS' progress in increasing the pool of available interpreters, particularly for less common languages. Interpreters considered that the undertaking in the Agreement was unrealistic, and had raised this with the MoJ during the consultation.[177] For example, Ms Lee described the target as a fantasy sold to the MoJ and Mr Rosenthal of the Institute for Translation and Interpreting attributed it to a failure on the part of MoJ to understand the difficulties of fulfilling requirements for interpreters, even in core languages in some parts of the country.[178] One professional interpreter, Mr Marc Starr, suggested that the scarcity of interpreters was related to the infrequent and unpredictable nature of requirements for particular languages in particular localities at particular times.[179] He did not believe that widening the pool would make any material difference to this:

"I do not believe that the idea that an interpreter can be available anywhere for any language at any time, within an hour, is reasonable, feasible or realistic in the first place. […] while the ideal remains that the person closest to a job will be available, there is no way either the public service can ever expect to know when they require an interpreter, or for the interpreter to know when they will be required […] to get any language available to any location without affecting quality is simply naïve and unworkable."[180]

The courts regularly require languages that are difficult to source properly. According to the MoJ there were fewer than ten interpreters on the National Register for each of a total of 68 languages or dialects.[181] For some of these languages there may be only three or four qualified interpreters in the country and they may need to travel to where the relevant trials are, just as judges and barristers do, in some instances.[182]

99. We heard from Mr Wheeldon that the target seemed "feasible", with the assumption made that 95% of requests would be for common languages. He attributed ALS' failure to meet this target to a combination of higher levels of short-notice bookings and a wider range of languages than expected in the absence of accurate management information.[183]

100. The interpreter community drew the Ministry of Justice's attention to the wildly unrealistic distance key performance indicator during the consultation process but this was disregarded. The number of languages required, the uneven distribution of interpreters and their language combinations across the country, the irregular schedule of courts and police services, last-minute contracting, and varying language needs, all inevitably make it necessary for interpreters to travel long distances. We are concerned that this is a further factor that deters professional interpreters from working under the Framework Agreement as travel expenses have been reduced. If Capita TI is absorbing higher travel costs than ALS first estimated there may be implications for future cost savings.

AN UNTESTED SYSTEM

101. The NAO considered that the tiering of jobs and new assessments were unproven, and therefore risky and was critical of the MoJ for not taking any independent advice on the proposed tiering of interpreters during the procurement process.[184] Ms Lee made reference to the fact that the tiering system had been rejected by the independent consultant engaged by ALS during the tendering process, but that this was not communicated accurately to the MoJ who were led to believe he had supported it.[185] We sought clarification on this point from Mr Townsley who told us:

"My brief for the consultancy visit was to inspect and comment on ALS plans for the screening of interpreters and their interpreting skills. During this visit, I was asked for my evaluation of their plans for a three tier system for interpreters. I made it clear to Mr David Joseph [then Head of Linguist Relations at ALS] that I did not think the three tier system was appropriate or functional. I gave my reasons for this view. I was told by him that a tiered system for interpreters was required by the MoJ and that it was non-negotiable. Having understood that, I then suggested, in that case, that the least worst option would be a two tier system based on a pass in oral AND written components of the Diploma in Public Service Interpreting (DPSI), or a pass in the oral components of the DPSI exam only. Regarding the proposed tier 3, I made it clear that, in my opinion, it was a nonsense and should not be instituted."[186]

102. ALS did not make it clear to the MoJ that the three tier system for interpreters had not been supported by the independent expert it had consulted. The Department has sanctioned, untested, a tiering system that imposes major changes to professional occupational standards and has significant potential to undermine the progress that has been made in professional development and resulting improvements in the quality of interpreting services provided in the justice sector. It would be disastrous if the Department continued to permit the courts to be starved of highly qualified interpreters. Just as the Department had concerns that membership of the National Register did not guarantee quality, we fear that a diminution of quality is an inevitable product of implementing a new system which does not accurately evaluate the skill levels of professional interpreters.

103. Being able to communicate in a given language does not make someone an interpreter. The National Agreement, the National Register and qualifications that underpinned it were put in place to safeguard the right to a fair trial. The level of concern that arose during the consultation process regarding the potential diminution of quality standards by imposing the tiered system, diluting qualification requirements and imposing lower levels of pay suggest that the Ministry of Justice was determined to pursue the implementation of the Framework Agreement in the face of evidence that it would reduce the quality of language services available to the courts.

104. We are astonished that the pilot was not used to test the tiering system and assess whether interpreters meeting the new standards could perform adequately in court. We are particularly concerned at the decision of the Ministry of Justice not to seek to build on safeguards developed under the previous system whereby interpreters other than those registered by NRPSI were to be used only in exceptional circumstances. We support the National Audit Office's proposal that the tiered system should be independently evaluated.

105. The use of tier 3 interpreters in courts and tribunals should be reserved for those cases in which it is absolutely unavoidable, such as in rare languages for which there is no relevant professional qualification, or to meet the specific needs of a deafblind person who requires a particular mix of skills in an interpreter. Alongside fulfilment rates, the MoJ should monitor the level of use of particular tiers of interpreters by HMCTS and ensure that any instances of inappropriate use of tier 3 interpreters can be properly investigated and managed.

THE ASSESSMENT SYSTEM

106. The Agreement required all interpreters to undertake online and test-centre based assessments to establish their level, or tier, of competence in their language or dialect. In summer 2011, Middlesex University was approached by ALS to design this assessment system.[187] Brooke Townsley, who, on behalf of the university, designed what he described as a quality assessment, explained:

"It was not designed or intended to replace or invalidate the full professional qualifications that interpreters already held. It was designed to be supplementary to those and to confirm that the levels of competency indicated by those qualifications were still valid."[188]

107. In respect of assessments in particular it was clear to us that ALS should have been more candid with the Department about the limitations on its capacity to begin delivering services at the end of January. Mr Wheeldon told us:

"My understanding is that, up until probably the [17^th] February date, we were still going to be working with Middlesex University. I know they were having problems with capacity and getting the number of assessments through, and we had some issues with that. They had concerns about their own ability to deliver the numbers that we required […] I've never seen any email, letter or anything from Mr Townsley or Middlesex University that would suggest anything but a good relationship up until the end of January."[189]

Mr Parker echoed the view that the problems with Middlesex were related to their capacity to deliver the marking of assessments on schedule.[190]

108. The NAO found that ALS did not notify the MoJ about the fact that Middlesex University and ALS had formally suspended the agreement for the administration of assessments on 3^rd January, several weeks before the contract went live.[191] Mr Handcock reiterated to us that MoJ was not aware of the fact that ALS' agreement for the delivery of the assessment process had been terminated prior to contract launch on 30 January.[192] Capita refuted this; they explained that they had first informed the MoJ via a telephone conversation, the date of which was not recorded, but suggested that the issue was evident in risk logs, relating to mid-January, which had been shared and discussed with the Department.[193] We were subsequently told that the MoJ had become aware that there was a delay in marking assessments from Middlesex University in mid-January but understood that ALS was in the process of discussion with other institutions to pick up the work; the MoJ was not aware of the date of termination until the NAO's investigation.[194]

109. The assessment was also a factor in professional interpreters boycotting the new arrangements as they felt that their proficiency was already proven through the level of skills and experience required to achieve professional qualifications and to register with membership organisations. This frustration was exacerbated by the fact that they were initially expected to pay for their own (re)assessment.

110. Our evidence indicated that a considerable volume of interpreters on the supplier database have not been assessed to ensure that they could perform adequately at the tier to which they were assigned; it is not clear how many of them have provided services under the Framework Agreement. We heard from an interpreter who had registered with ALS and had been both assigned as tier 1 and offered a high volume of work despite: having refused to undertake an assessment; awaiting the results of her DPSI; and not uploading a valid CRB check or copies of qualifications or references. When she subsequently felt unable to accept work due to her lack of experience she drew this to the attention of ALS but the work offers continued.[195] In addition, we heard that interpreters who had been assessed to be operating sufficiently at a particular tier were offered assignments at higher tiers.[196]

Standardised pay and conditions

111. Under the draft Framework Agreement, fees for interpreters were reduced and restructured according to tier. Rates no longer include travel time and are now paid hourly; they are: £22 for tier 1 interpreters; £20 for tier 2 interpreters; and £16 for those operating at tier 3, with higher rates paid for weekends and bank holidays.[197]

112. Previous rates of pay for court interpreters had been under the control of the Department to some extent as they were negotiated through the National Agreement which continues to operate in some areas of the justice sector not yet signed up to the Framework Agreement. Interpreters were paid a fee of £85 for up to three hours work, including travel time, plus £7.50 per quarter hour thereafter. Higher amounts could be earned by working anti-social hours—as continues to be the case— and by undertaking other interpreting work which was not governed by the Agreement.[198] Despite allegations that previous rates of pay were too high—for example by the previous Parliamentary Under Secretary of State, Crispin Blunt MP, who cited six-figure salaries—an ITI survey in 2011 found that the average annual income of an interpreter was £15,000, although for some rarer languages it could be up to £35,000.[199]We heard from several individual interpreters who had earned far more modest annual incomes than these.[200] Expenditure on interpreting increased slightly after the A8 countries joined the EU in 2004 but had been generally stable since 2008.[201] The relative stability of costs may be explained by the fact that there had been no increase in interpreter pay under the Agreement since 2007.[202] Most recently costs had fallen: the total spent by the Court Service on interpreters fell by 13% from £49.2m in 2009-2010 to £47.2m in 2010-2011.[203]

113. Dr Francis Beresford estimated that under the new contract there had been reductions in pay of 28-73% for court work and 33-43% for tribunal work, depending on the length of the assignment and the amount of travel.[204] Ms Lee of the Professional Interpreters' Alliance, supplied us with a sample comparison of the post and pre-rates for a typical case which indicated that fees had been restructured to such an extent that interpreters working through ALS were being paid less than the minimum wage.[205]

Table 2 Comparison of rates of pay to court interpreters. Applied Language Solutions (ALS) and National Agreement (NA)

Distance: 29 miles return
Travel time: 2 hrs
ALS ALS ALS NA rates
3 hrs min

Total hours
(attendance + travel time )
3 4 5 5

10am-11am 10am-12am 10am-1pm 10am-1pm

Attendance fee: £20.00 £40.00 £60.00 £85.00

Travel time: 2 hrs £0.00 £0.00 £0.00 £30.00

Mileage:
ALS 40ppm after first 20m = 9 miles
NA 25ppm = 29 miles
£3.60 £3.60 £3.60 £7.25

Parking expenses £9.00

Public transport

Total payment £23.60 £43.60 £63.60 £131.25

Parking (2 hrs minimum) [1] -£5.00 -£5.00 -£9.00 -£9.00

Fuel cost [2] -£5.28 -£5.28 -£5.28 -£5.28

Total travel expenses -£10.28 -£10.28 -£14.28 -£14.28

Income net of travel expenses £13.32 £33.32 £49.32 £116.97

Gross income / hour * £4.44 £8.33 £9.86 £23.39

Data Source: Professional Interpreters for Justice, see Ev 71

* Gross hourly rates for self-employed interpreters liable to pay Income Tax and National Insurance, who have no pensions, holiday of sick pay and no job security.

[1] Nearby car park: Bell St. http://www.lrparking.com/tariffs

[2] Fuel calculator: http://www.fuel-economy.co.uk/calc.shtml Approx. Journey Cost on 22/9/12: £5.28 (29 miles, estimated MPG 35, Fuel Cost: 140.15 pence/Litre)

- According to the AA, the cost of running a petrol car costing up to £14,000 is 45.91p per mile; for petrol cars costing between £14,000 and £17,000 this rises to 59.83p (assumed annual mileage of 10,000) (2012 figures).

114. NAO modelling estimated the reduction in interpreter pay under the new arrangements as initially 20% dropping to 8% after Capita-ALS altered the terms.[206] Dr Francis Beresford and Ms Lee submitted evidence alleging that there were errors in this modelling. According to Dr Beresford the rates used by NAO did not include travel time, travel expenses or parking which were previously routinely paid but excluded under the new Framework Agreement, in addition they were based on police rather than court work.[207]

115. Gabrielle Cohen, Assistant Auditor General, subsequently explained that the NAO's modelling was based on the only available data, those which had been used by the MoJ in procurement. While these data were not as comprehensive as the NAO would have wanted, they did provide a range of possible work scenarios for interpreters, based on, for example, the number of interpreter bookings taken, the length of appointments, and travelling time and distance. She further stated: "We believe that the infinite variability in the different pay levels experienced under different scenarios sufficiently explains the difference between the results obtained from our model and that produced by Professional Interpreters for Justice".[208]

116. One of the primary means by which ALS sought to achieve the savings it promised was through this reduction in rates of pay to interpreters. Mr Rosenthal was robust in his response to this approach:

In looking at paperwork around this contract, it appears that, during the tender phase, ALS claimed it could make savings of roughly one third, based on management efficiencies. Given that actually it has simply used a cudgel to knock down rates of pay within a monopoly situation that it has been handed from £30 an hour to £20 an hour, I would gently suggest that it has achieved savings of one third by sledgehammering its suppliers.[209]

Others echoed this sentiment, describing the new terms as "frankly insulting" and "unacceptable", particularly as they had invested significant resources in getting the necessary qualifications and regulation.[210]

117. Mr Handcock considered that quality—in the sense of the provision of sufficient tier 1 and 2 interpreters—and pay rates are matters for Capita.[211] Nevertheless these were sanctioned by the MoJ as they had been agreed between the Department and ALS in formulating the Framework Agreement and, as we noted above, this was done in the full understanding on the part of the MoJ of how the bulk of the savings were to be achieved.

118. According to the NAO, the MoJ did not verify ALS' claims regarding what would amount to an appropriate reduction in pay rates. We sought further clarification from the Department on this matter. In response to stakeholders' concerns about rates of pay raised in the April 2011 consultation on the Framework Agreement, the Ministry of Justice explained that it tested bidders in the competitive tendering process to ensure that rates of pay would be sufficient to ensure they would attract and retain suitably qualified linguists.[212] This "test" comprised questioning bidders about market rates, and verifying them using a pay comparison website.[213] As we noted above Mr Wheeldon told us that rates were based on: the work that ALS had been doing for the police in the North West; their work in other sectors; and rates in the Scottish system which he said were 30-40% lower.

119. Conversely, we were told that as the nature of police and court work differs, the former could yield higher incomes than the latter within the same rates.[214] For example, in the majority of police cases work does not last more than two hours, and it can wait for an interpreter, unlike courts; this meant that in the North West ALS could 'sequence' jobs relatively easily and do so with a relatively small pool of interpreters. The difficulty of applying the principle of back-to-back assignments to courts is that interpreters are required to be in situ for significantly longer than the actual interpreting time in the court room, due to both the unpredictability of court scheduling and the requirements of legal professionals who need assistance outside the court room. For example, a crown court case may require an interpreter to keep a full day to be kept free waiting for the case to be heard.[215] We discuss further in the following section how these changes in remuneration impact on fulfilment rates.

120. In addition, if no travel time is paid and the minimum time for a single job is one hour, two police jobs would give a significantly higher hourly rate of pay to interpreters than a one hour magistrates' court job which may require additional time to be spent with defendants and legal professional outside the court. We were also told that under the North-West police contracts rates paid to qualified interpreters operating at tier 1 had actually been raised from those initially offered to between £30 and £35 per hour.[216]

121. Being booked by the hour may also act as a disincentive for interpreters to complete jobs that take longer than planned.[217] This may account for the reports we received of interpreters leaving courts in the midst of proceedings to attend other jobs or after the hour assigned.[218] This also causes inconvenience to courts. The Senior Presiding Judge noted that as interpreters are booked and paid for only from the moment that the case is listed, they no longer arrive early to assist in pre-conference hearing conferences so these discussions delay proceedings.[219] It is unreasonable to expect interpreters to be available for as long as they may be required and not paying for the full time actually required.

122. There is a question over whether pay has actually been standardised in practice. Some individual witnesses, including interpreters and a solicitor, alleged that Capita-ALS was fulfilling some jobs by paying higher fees to interpreters through negotiation.[220]

123. We conclude that under any scenario the levels of remuneration available to interpreters servicing the justice sector have significantly reduced. This in part explains why NRPSI interpreters have refused to work under the new arrangements and this in turn impacts on the ability of the contractor to fulfil jobs at a rate which meets demand. The 2001 Auld report recommended a review of the level of payments to interpreters with a view to encouraging more of the best qualified interpreters to undertake work and to establish a national scale of pay. The same interpreters now feel that they have been forced to leave the market.

124. The bulk of the savings accrued in contracting ALS to provide interpreting services appear to stem not from the resolution of administrative issues which were causing inefficiencies, and were a key factor motivating the change, but from a reduction in interpreter pay. In devising the new pay structure the Ministry of Justice and ALS failed to appreciate the differences between court work and police work that would result in court interpreters being unable to achieve a sustainable level of income. We recommend that the MoJ audit the true amounts that are being expended on interpreter pay and travel by Capita TI to establish whether the contractor is providing a level of remuneration that is unsustainable and may already be having a deleterious effect on the quality of interpreters that will be available to the justice sector in future. In order to ensure that the best qualified interpreters are available to courts and tribunals it may be necessary for Capita to further increase the rate of pay for the highest qualified at tier 1.

The online portal

125. The service provided by ALS centres on an online portal with automated systems for: interpreter registration and credentials; bookings and cancellations by justice sector customers; publicising work to interpreters of the appropriate tier; interpreter acceptance and cancellation of bookings via text; payments and their verification; and complaints.

Backlog in complaints

126. The high volume of complaints received during early implementation caused a severe backlog, highlighting inadequacies in the complaints system, which did not have sufficient back-office systems, including staff and server capacity, to cope with data submitted to the online portal.[221] This inability to handle the level of complaints resulted in unacceptable delays in their resolution. One magistrate described his complaints as having been "fobbed off for months".[222]

Failure of basic vetting procedures

127. We heard that there were similar failures in basic vetting procedures, including systems for recording their verification.[223] The intention of the Framework Agreement was to implement a higher level of security checks than under the previous arrangements; interpreters were expected to have an enhanced criminal records bureau disclosure.[224] For example, between January and July 20% of applications for vetting by the police were turned down.[225] In addition, freedom of information (FOI) requests to Warwickshire Police on the number of applications for vetting by ALS for interpreters indicated that levels of security checks were substantially lower than the number of interpreters purportedly available to work.[226] We heard examples from interpreters registered with ALS, and from those who had created spoof identities, of unverified credentials qualifications, references, personal details, and security checks.[227]

128. ALS and Capita paid lip service to the regulatory duties accepted under the Framework Agreement. The inability to cope with complaints and the failure of basic vetting procedures are key examples of ALS' lack of capacity to deliver on its promises to the Ministry of Justice.

Perverse incentives within the system

129. The rates of pay, removal of the three hour minimum booking, the loss of cancellation fees, and the payment of travel expenses only for journeys longer than an hour, together have created a disincentive for interpreters to take court jobs near to where they live, or to accept work at anything other than short-notice, to reduce the risk that they will turn up only for the job to be cancelled.[228] Two responses to our online forum illustrated these tensions:

I should stress that it only makes financial sense for me to accept bookings for assignments I have to travel to over 100 miles. It does not make sense to accept even longer bookings (i.e. trials) as if they do not last as long as they were supposed to, interpreters are not paid any cancellation fees (but have to make themselves available for the whole length of the trial/refuse other work due to that commitment). We spend most of our time driving/travelling to the venues which must affect our performance.[229]

Capita often ask me to work a long distance from home and at short notice but I never accept. Travel means such assignments take up an entire day and Capita are unable to offer me what I earn from a day on other projects. They would get closer if they guaranteed more than an hour's pay for long distance assignments, paid travel costs and travel time in full, and paid for accommodation when they want an interpreter to travel several hundred miles and appear at 10am. A change here appears essential since Capita stated in evidence to the Justice Committee they will never meet the KPI committing them to find an interpreter within 25 miles of the client for 95% of assignments.[230]

130. This is exacerbated by a problem intrinsic to the automated system that all available jobs are texted to relevant interpreters. This provides an incentive to book multiple assignments and to cancel work at late notice having chosen the one likely to yield the most pay, for example, a job that is further away as above, or that is guaranteed, unlike, for example, a whole day booking for a crown court case that may be adjourned.[231] The system itself thus increases the likelihood that jobs will not be fulfilled. The indirect nature of booking arrangements also makes it harder for the same interpreter to be booked throughout proceedings resulting in a loss of continuity for the other participants in the case and a loss of interpreter knowledge about the entirety of the case which would presumably aid interpreting.[232]

118 Q 73 Back

119 Q 202 Back

120 The National Audit Office, The Ministry of Justice's language services contract, September 2012, paras 2.4-2.6 Back

121 Q 196 Back

122 Q 199 Back

123 Qq 199, 207 Back

124 Q 193 Back

125 Ev 52 Back

126 Q 68 Back

127 The National Audit Office, The Ministry of Justice's language services contract, September 2012, paras 2.7-2.11; Under condition 1.5 of the Framework Agreement Capita -ALS is required to have access to sufficient numbers of interpreters to provide 24 hour cover, 365 days a year. Back

128 Qq 199-200 Back

129 Qq 200-201. See also Ev 83 Back