Justice CommitteeWritten evidence from the Professional Interpreters’ Alliance

The Justice Select Committee has already published (in the report into the Budget and Structure of the MoJ) a short briefing document prepared by PIA.

PIA is a member of the Professional Interpreters for Justice Steering Committee, on behalf of which campaign group extensive submissions were made to this inquiry.

Abstract

From 2009 onwards, PIA has communicated relevant information about outsourcing and interpreting standards to the Ministry of Justice. We warned the MoJ that the Framework Agreement was flawed.

The Ministry of Justice was left in no doubt from early on in its procurement exercise that Registered Public Service Interpreters would not work for ALS Ltd.

The Ministry of Justice arbitrarily made a wide-reaching policy decision to the effect that interpreters for non-English speakers in H.M. Courts and Tribunals Service could be less qualified and experienced than they were required to be in the past.

The failure of the ALS Ltd provision and the widespread boycott by NRPSI interpreters demonstrate in practice that the courts cannot function effectively without the services of professional interpreters.

1. The Professional Interpreters’ Alliance came into being in January 2009, in response to the threat presented to freelance self-employed legal interpreters’ livelihoods by six police forces in the North West of England deciding to outsource the provision of translation and interpreting services to a commercial supplier. This contract, which was awarded to Applied Language Solutions Ltd, was effectively a precursor to the Ministry of Justice Framework Agreement with ALS Ltd.

2. The resistance by Registered Public Service Interpreters who served the police forces to the proposed outsourcing was emphatically communicated to the police forces concerned and to the Ministry of Justice’s “Interpretation Project”. PIA pleaded for professional interpreters’ organisations to be consulted, and a petition was submitted by interpreters who pledged to withhold their services from any commercial supplier of interpreting and translation services. In March 2009, a House of Commons adjournment debate took place on the subject of quality concerns surrounding the outsourcing of police interpreters.1

3. When the police contract was awarded to Applied Language Solutions Ltd without the proper procurement procedure having been followed, in breach of the Race Relations Act, PIA challenged the ALS/Police contract through Judicial Review proceedings funded by donations by hundreds of interpreters. The defendants admitted they had breached the Race Relations Act by not carrying out an Equality Impact Assessment (EIA) and the ALS Ltd contract was technically quashed in February 2011.

The court order noted: “There was a risk (even for a temporary period) the interested party [ALS] might not be able to supply interpreters for every assignment of the same quality and within the same time constraints as had been supplied under the previous arrangements. The defendants knew, or ought to have known of that risk”. Notwithstanding, the police forces continued to use ALS Ltd while they retrospectively carried out the Equality Impact Assessment (EIA).

4. It was brought to the MoJ’s attention that hundreds of NRPSI registered interpreters signed an unprecedented petition to North West Police forces in 2009, and again in 2010, stating that they would boycott working for ALS Ltd.

5. It is against this background of fierce resistance by self-employed qualified professionals and legal challenge that the Ministry of Justice announced, in a Ministerial Statement on 15 September 2010, its intention to outsource interpreting and translation services in the Criminal Justice Sector. The original timescale envisaged for implementation of the new Framework Agreement was for it to be signed in early 2011.

6. The Professional Interpreters’ Alliance entered into the pre-action protocol for Judicial Review with the Ministry of Justice in February 2011. We believe it is only as a consequence of our Pre-Action Letter of February 2011 that the MoJ carried out any consultation at all.

7. In the event, the “consultation” that was carried out in May 2011 was no more than a window-dressing exercise, being neither meaningful nor at a time when the proposals were at a formative stage. By now, ALS Ltd was the sole supplier still under consideration, and the proposed model was of ALS Ltd’s design. English public law and case law (Capenhurst 2004) state that if the public body does decide to consult, the consultation has to be meaningful and effective. The draft Equality Impact Assessment carried out during this stage was also deeply flawed. Neither the EIA nor the consultation was included in the original tendering timetable, which envisaged the Framework Agreement being in place by April 2011.

8. The outcome of this highly unconventional “consultation” was the MoJ’s “letter to stakeholders” of 6 July 2011, in which Deputy Director of Crime Martin Jones roundly dismissed the concerns raised by stakeholders in their comments.2 The assurances given in July 2011 rang hollow then, and with the benefit of the experience of seven months of ALS Ltd providing to HMCTS, ring even more hollow now. Some minor changes were made to the Equality Impact Assessment and a final version was presented to Ministers in June 2011, but the EIA remained flawed and did not adequately assess the policy’s impact on the service’s main users or providers.

9. In August 2011, PIA sent a further pre-action letter to the MoJ, challenging the award of the Framework Agreement. The MoJ stringently denied acting unlawfully. In response to allegations the Equality Impact Assessment was not properly carried out, the MoJ’s solicitor wrote on 23 September 2011: “As for the likely impact on livelihoods, Ministers were expressly informed that the move to the proposed contractual model was expected to mean lower hourly rates for most linguists, a substantial number of whom are non-nationals or from black and minority ethnic groups. […] It is denied, therefore, that the decision was taken without due regard to the equality objectives in this regard.”

10. With regard to the UK’s obligations under EU Directive on the right to interpreting and translation in criminal proceedings, the MoJ’s solicitor wrote on 23 September 2011: “With respect to Article 5(2) of the Directive, the UK Government is presently considering how the obligation will be met.” It is not known what progress has been made since then but it is clear that the Framework Agreement does not meet the obligation.

11. On 3 December 2011, the MoJ was provided with a list of names and registration numbers of 1167 Registered Public Service Interpreters who had individually registered their refusal to work for ALS.3 Since the inception of the contract, Registered Public Service Interpreters have clearly not engaged with ALS Ltd, its dubious standards and unacceptable terms and conditions: of the workers registered with ALS Ltd, only 301 are also registered with NRPSI, meaning that ALS Ltd has managed to attract just 13% of the people who used to perform the important duty of police and court interpreting.4 It should be clear that H.M Courts and Tribunals Service is no longer being served by experienced and qualified professionals.

12. After the inception of the ALS Ltd contract, when HMCTS returned within weeks to the system of booking NRPSI interpreters directly alongside ALS Ltd provision, many of those interpreters boycotting ALS Ltd decided they would also boycott direct bookings from courts, or else the failings by ALS and its workers would not come to light. It is fair to say a marked difference in quality has been the result, as exemplified by the unprecedented number of media reports about court delays and disruption, collapsed trials, and farcical situations caused by ALS Ltd’s workers.5

13. As part of their Continuous Professional Development while they are out of work, PIA’s members and other NRPSI interpreters have been attending court hearings to monitor cases where an interpreter is used. The observations thus reported give rise to grave concerns about the credentials and competence of ALS Ltd workers sent to interpret in courts and police stations. Evidently, the checks and assessments that ALS Ltd is contractually obliged to carry out are simply not being done.

14. Based on the reports received from PIA members, other NRPSI interpreters and independent legal professionals,6 PIA submitted a formal complaint to ALS Ltd/Capita plc on 22 May 2012, detailing 320 separate incidents for investigation.7 We also expressed our concern that no formal Complaints Procedure was published, and nor were any Disciplinary Framework and Procedures and the related Appeal procedures, and we requested a copy of the same. PIA has still not received the documents requested from ALS Ltd nor any feedback on the complaints submitted.

15. On 29 August 2012 PIA sent a further complaint to ALS Ltd/Capita plc detailing a further 100 incidents for investigation.8

16. We believe that PIA’s experience of our complaints effectively being ignored by ALS Ltd/Capita plc is typical of the experiences of most. There is no facility to complain other than through the ALS Ltd online portal used by courts. Complaints go directly to ALS Ltd and there is no transparency of process for ALS workers. For other court users, such as defendants, witnesses, barristers and solicitors and members of the general public there is simply no facility to complain.

In practice we have seen that ALS workers who have caused trials to collapse are back working in courts within days. We understand from court clerks who expressly requested that a particular incompetent ALS worker is not sent to that court again, that ALS Ltd ignores the request. We were also told that instructions have been issued to HMCTS employees forbidding them undermining the ALS interpreter provision in any way. Members of the Judiciary have shown ALS workers great indulgence and allowed them to muddle along, or, in many cases, simply proceeded without an interpreter.

17. We have grave concerns that one commercial supplier has been given a monopoly contract under which it fulfils the conflicting roles of recruiter, work provider, disciplinarian and regulator. A commercial agency with vested interests is effectively dictating what standards are appropriate for interpreters in the Criminal Justice System and is exposing British taxpayers and the Justice System to huge financial risk by denying non-English speakers the right to a fair trial.

18. ALS Ltd has repeatedly been exposed as a company that cuts corners, is not complying with the contract, has not carried out appropriate checks of its workers, cites wildly varying figures in response to how many workers are on its books, was found to have registered NRPSI interpreters without their consent and to have made untrue statements about its corporate memberships. Complaints made to Trading Standards and the Information Commissioner’s Office have been upheld. A complaint was recently submitted to the Association of Translation Companies, alleging breaches by ALS Ltd of nine out of the ten items of ATC’s Code of Ethics.

19. In addition to the conflict of interests inherent in the above functions contracted to ALS Ltd, the entire control environment (including the complaints procedure) has been outsourced to ALS Ltd. The contractor is responsible for collating the performance data, and to a large degree, for its interpretation. For example, the data published by the MoJ on 24 May 2012 makes no mention of the volume of bookings being handled by HMCTS and AIT call-centre staff booking interpreters directly and bypassing ALS Ltd. If the official figures are to be believed, ALS serviced 81% of all bookings. Yet it didn’t, it only managed to service a percentage of whatever volume of bookings was entrusted to it. There are further examples of how the figures have been skewed in their presentation.9

20. Direct calls to NRPSI interpreters and the use of other agencies alongside the ALS Ltd contract have not diminished. In appendix we include evidence of direct calls reported by PIA members and other NRPSI interpreters through the online form.10

Conclusion

The MoJ’s failure to safeguard professional standards for interpreting in the Criminal Justice System could have been averted and is a direct consequence of its refusal from 2009 onwards to enter into dialogue with the interpreting profession. For our part, we are satisfied we continued to seek dialogue with the MoJ and provided relevant information that was of interest to the MoJ interpreting project continually from PIA’s creation in 2009.

If it is important that non-English speakers receive equal access to Justice, Registered Public Service Interpreters should be used by HMCTS as they were before.

August 2012

APPENDIX

EVIDENCE FOR JUSTICE SELECT COMMITTEE

Interpretation and Translation Services and the Applied Language Solutions (ALS) contract

I am a Registered Public Service Interpreter and director of the Professional Interpreters’ Alliance, my name is John Podvoiskis (NRPSI 13415). I collate reports from interpreters of direct calls to them outside of ALS.

The reports are provided through a webform at http://rpsi.name/defaults/calls.html. Each report has a tick-box declaration by the sender that the information is true. The emails generated from the form are available by request.

The reports are compiled and summarised in an Excel spreadsheet. The results show the trend of direct calls to interpreters since the 1 February 2012. This analysis does not include all such calls.

From the chart, the first quarter-year (days one to 91) show a classic “learning curve”. The main slope of this section (days eight to 59) is 4.75 calls per day. The flattening near day 90 represents a significant fall in calls that suggests ALS supply almost all of the demand.

However, the section of the curve from day 100 to day 211 rises at about 3.14 calls per day with no trend to the right. So the direct calls dropped to 66%, from 4.75 to 3.14 calls per day. This clearly indicates ALs are failing to supply for court and police bookings and so calls direct to interpreters are continuing to be made.

Who requests interpreters directly?

JOB

Q1

Q2

All calls

Crown

49

38

91

Magistrates

202

162

429

Police

37

26

70

Tribunal

25

36

65

Direct calls to interpreters originate from these main organisations (table above). There is evidence in the reports that sometimes the police call an interpreter for a first appearance at Magistrates Court and pay themselves. Previously, the police ordered the interpreter who was subsequently paid by HMCTS.

Which languages are in demand?

Language

Q1

Q2

All calls

Polish

92

32

137

Romanian

52

89

170

Lithuanian

38

26

76

Urdu/Panjabi

9

18

27

Nepalese

16

8

27

Russian

16

9

26

Hungarian

19

7

28

Slovak

11

10

22

Spanish

9

11

24

French

5

7

13

Czech

6

9

15

Portuguese

3

13

19

Bulgarian

2

11

14

Pashto

8

2

10

Turkish

4

5

9

The table above shows the 15 most popularly requested languages, according to those who reported direct calls. Note that inconsistencies between quarter-years (Q1, Q2) may reflect natural fluctuations in cases.

Conclusion

ALS are still unable to supply after half a year of trying.

John Podvoiskis

1 Adjournment debate on Police Interpreters, 11 March 2009. An adjournment debate on “Interpretation Services - Ministry of Justice” took place on 10 October 2011.

2 Martin Jones “Letter to Stakeholders”, 6 July 2011

3 NRPSI interpreters refusing to work for ALS, summary statistics

4 Crispin Blunt MP’s letter to John Leech MP, 13 July 2012

5 Since February 2012 there have been more than 150 articles in print media criticising ALS Ltd.

6 Reports of defaults by ALS Ltd were collected using an online form at http://rpsi.name/default/

7 A copy of the complaint dated 22 May 2012 was already provided to Justice Select Committee members on 12 June 2012.

8 A copy of the complaint dated 29 August 2012 is included with this submission.

9 For further examples of how the figures have been skewed in their presentation, see “Lies, damned lies and statistics” by Kasia Beresford.

10 Reports of direct calls bypassing ALS Ltd were collected using an online form at http://rpsi.name/default/calls.html

Prepared 4th February 2013