Justice CommitteeWritten evidence from the Professional Interpreters for Justice This submission is made on behalf of the following representative bodies which are partners in the Professional Interpreters for Justice campaign: Association of Police and Court Interpreters (APCI), Institute of Translation and Interpreting (ITI), National Register of Public Service Interpreters (NRPSI), National Union of Professional Interpreters and Translators (NUPIT)/UNITE the Union, Professional Interpreters’ Alliance (PIA), Society of Official Metropolitan Interpreters (SOMI UK), Society for Public Service Interpreting (SPSI). Additionally, the Chartered Institute of Linguists (CIoL) is a participant in the Campaign’s Steering Committee as an observer, and in common with several of the above bodies will also be submitting evidence in its own right.

This submission is made on behalf of the Professional Interpreters for Justice Steering Committee and the members of all the interpreter organisations represented. (APCI, ITI, NRPSI, NUPIT, PIA, SOMI, SPSI, CIOL) See http://tiny.cc/proterps4justice.

The interpreting profession welcomes the JSC Inquiry into the Framework Agreement, having long sought open and transparent discussion of the Ministry of Justice’s outsourcing of interpreting services to a sole commercial supplier.

Other Documents

The JSC has already received a copy of the representations that Professional Interpreters for Justice made to the National Audit Office Investigation (18 June 2012). The JSC has also published (in the report on the Budget and Structure of the MoJ) a short briefing document prepared by our member PIA. We aim to avoid repetition by referring to earlier documents where possible.

Abstract

The contract is not supported by experienced and professionally qualified Registered Public Service Interpreters who served the courts previously. Hence the quality of interpreting in the courts is not the same as before.

This written submission is not just critical of the MoJ’s policy decisions and procurement practice, but also highly sceptical of the extent to which the contracted functions and safeguarding procedures are actually being followed by the contractor ALS Ltd.

We have grave concerns for the delivery of justice to non-English speakers and the general functioning of HMCTS if the courts continue to be served by the less competent ALS Ltd workers engaged under the Framework Agreement.

We respectfully submit that a proper audit should be carried out of ALS Ltd’s internal verification checks and its worker database.

This document is structured to follow the six published terms of reference. Where possible, reference is made to existing documents. In addition, we include four case studies in appendix.

Background

Professional Interpreters for Justice represents the interpreters who previously served the Criminal Justice Service including H.M. Courts and Tribunals Service. They are independent self-employed freelancers who invested in their profession by obtaining the appropriate qualifications, experience, vetting and registrations, as required by the National Agreement on Arrangements for the use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System, which had been put in place following a two-year review in 2001.

Our profession repeatedly warned the Ministry of Justice that replacing independent professionals with lower qualified or unqualified agency workers would endanger equal access to Justice for non-English speakers. The Ministry was left in no doubt that professional interpreters who previously worked in the CJS would no longer be available to it under the new regime. Correspondence and numerous petitions submitted since early 2009 demonstrate that interpreters made their position clear and asked to be properly consulted. The MoJ pressed ahead with its contract with Applied Language Solutions Ltd despite the sure knowledge that it was not supported by professional interpreters, and never would be.

The HMCTS contract with ALS Ltd went live nationally on 30 January 2012. Most RPSIs decided to boycott ALS Ltd. When, mid-February, HMCTS resorted back to booking interpreters directly alongside the ALS Ltd contract, most of those who reject ALS Ltd resolved to boycott bookings made directly by HMCTS as well.

The ongoing boycott is a grass-roots action by professional interpreters as individuals; each self-employed freelancer has autonomously decided his or her stance towards working for ALS Ltd, and to working for the courts directly, while the Framework Agreement is still in place. Some have elected to leave the interpreting profession, indeed to leave the United Kingdom, altogether. In other words, the boycott action 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.

Therefore, a distinction should be drawn between the 2,300 Registered Public Service Interpreters who were previously engaged, and the workforce currently used by ALS Ltd which includes just 301 RPSIs. By and large, Registered Public Service Interpreters are not working in courts at present.

In view of the evidence to follow, we do not feel the workers engaged by ALS Ltd to service the contract can properly be termed “interpreters”.

ALS Ltd has manifestly failed adequately to service the HMCTS contract in all respects: procedural, administrative and logistical failures on the part of ALS Ltd and serious interpreting failures by its workers.

The costs incurred by ALS Ltd’s failings are both human and material.

1. The rationale for changing arrangements for the provision of interpreter services

1.1 Professional Interpreters for Justice made extensive submissions on this subject in written evidence provided to the National Audit Office, concluding irrational behaviour and arbitrary decision-making on the part of the MoJ. We respectfully refer the committee to Section 2 of our earlier submissions to the National Audit Office investigation.

1.2 The MoJ’s actions in awarding the Framework Agreement are in direct opposition to all policy development—both in the UK and the EU—over past decades. The National Agreement on Arrangements for the use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System, was put in place a decade ago as a result of the recommendations of the comprehensive two year Review of the Criminal Courts by Lord Justice Auld in 2001. No comparable prior study was carried out on this occasion (NAO 2.7–2.13).

1.3 Among the MoJ’s stated aims was to save money by freeing up court and police staff from booking interpreters and processing their pay claims. Nonetheless, the MoJ did not look into outsourcing the discrete functions of booking and payroll while continuing to use approved lists (NRPSI etc.).

1.4 The MoJ has referred to “shortcomings” in the previous system without ever articulating what they were. The MoJ’s “Letter to stakeholders” (July 2011) cites “anecdotal evidence” as the reason for introducing the ALS Ltd assessment. The MoJ claimed that “collaborative authorities” had “concerns that NRPSI registration does not necessarily guarantee quality. The evidence for this is anecdotal, but has been consistent enough to warrant action” (Letter to Stakeholders, 6 July 2011). Decisions were based on anecdote.

1.5 The MoJ did not attempt to remedy the perceived shortcomings by providing support or funding to improve the existing system.

1.6 A further rationale was a perceived shortage of interpreters in certain languages in certain areas of the UK. Nonetheless, no prior study to quantify existing expenditure or to map existing supply and demand was ever carried out by the MoJ. The Framework Agreement undertakings with regard to local availability of all languages are unrealistic.

1.7 When the MoJ sought “comments from stakeholders” and carried out an Equality Impact Assessment in April 2011, it did so belatedly and under threat of Judicial Review proceedings. This was no more than a box-ticking exercise.

1.8 No consideration was given by the MoJ to sustainability: the long-term consequences for established best practice, the retention of highly experienced and specialised interpreters within the profession, their ability to make a living with interpreting as one’s sole or main professional specialism, or saturation of a niche sector by allowing unqualified persons to practise at a lower rate of pay.

1.9 Early on, an arbitrary decision was taken by the MoJ that the high standards previously set for CJS interpreters could be lowered, with a view to increasing the pool of available interpreters. The Tier system was the consequence of this decision. The decision to lower minimum standards does not appear based on any rational study, nor does the perceived need to increase the pool of interpreters.

1.10 It seems that the MoJ made a policy decision (to lower professional standards for interpreters working in courts) with far-reaching ramifications, on the say-so of its preferred commercial supplier ALS Ltd. Did any other bidder’s proposal envisage lowering minimum standards?

1.11 Whatever the MoJ’s rationale for lowering standards of qualifications and experience for interpreters used by H.M. courts service, it did not grasp the complex dynamics of freelance interpreting in the Criminal Justice System, and failed to appreciate how difficult, specialised, and crucial to Justice is the work of legal interpreters.

1.12 We agree with the view expressed by the Justice Select Committee in the Report on the Budget and Structure of the MoJ that in some cases the MoJ lacks the appropriate expertise to commission effectively. Both in terms of how the interpreting profession is organised and how freelance professional interpreters operate, the MoJ lacked the appropriate understanding and did not consult those in the know (see NAO 2.31).

We refer to the assertion by thebigword in evidence provided to the JSC (Budget & Structure of MoJ, p.162), that “A visit to the Courts and Probation services to see interpreters in action to enable information gathering and to inform solutions took place half way through the tendering process when some companies had already been rejected.”

1.13 Neither did the MoJ’s civil servants understand the actual practice of court interpreting, and consequently appreciate the extremely high calibre of skills required for this demanding and challenging occupation. Simultaneous court interpreting requires the accurate transferral of difficult language into another language, in real time. The professional interpreter is able to listen to information in one language, process information into another language, and speak in that other language, all at the same time.

1.14 There was insufficient understanding of the consequences for Justice of using unskilled or lower qualified workers whose main occupation is not interpreting.

1.15 The costs to Justice are:

(a)loss of safeguards for Equal Access to Justice for non-English speakers;

(b)human cost of unlawful detention and other Human Rights breaches;

(c)failed prosecutions;

(d)failure to recover criminal assets;

(e)miscarriages of justice;

(f)loss of skilled workforce: experienced interpreters are leaving CJS interpreting;

(g)loss of professional best practice: the system is designed by a commercial entity instead of by professional institutes and associations;

(h)embarrassment to British Justice in the national and international arena; and

(i)loss of faith in the Justice System;

2. The nature and appropriateness of the procurement process

2.1 We respectfully refer the committee to Sections 2 and 4 of Professional Interpreters for Justice’s earlier submissions to the National Audit Office investigation.

2.2 As was noted by JSC witnesses (Budget & Structure of MoJ, p.60, 200) the MoJ uses the competitive dialogue approach inappropriately. In this instance it resulted in the MoJ allowing itself to be sold the Tier system “solution” by contractor ALS Ltd: lower qualified, lower paid workers, promised to be in more plentiful local supply.

2.3 Contemporaneous correspondence with the MoJ (including the pre-action protocol for Judicial Review) identified and challenged procedural and substantive issues, EU Directive issues, public procurement issues and Equality issues, summarised below.

2.4 Procedurally, procurement process was flawed by the following:

(a)No prior study (NAO 2.7–2.13);

(b)No engagement with interpreters during the procurement exercise (NAO 2.14–2.17; 4.1–4.14);

(c)Not engaging in meaningful and effective consultation (NAO 2.18–2.26; 4.1–4.14);

(d)Not carrying out the Equality Impact Assessment in good time and then doing it retrospectively (NAO 2.27–2.30);

(e)MoJ staff is not familiar with the day to day realities of providing interpreting to CJS and have little, if any, understanding of the way the interpreting profession operates. (NAO 2.31); and

(f)Not taking into account information about the performance of ALS in the North West and the interpreting profession’s conflict with ALS (NAO 2.32–2.33).

2.5 Substantively, the decision to make a sole provider responsible for all aspects of delivery was irrational. In the MoJ Framework model the contractor (ALS Ltd) is to be the sole provider of language services to CJS bodies and performs the functions of:

work provider (to interpreters);

supplier (to the CJS bodies);

regulator (including disciplinary function);

assessor of qualifications and competence; and

registrar of suitably qualified and competent interpreters.

Every one of the above functions is in direct conflict of interest with all the others and each should be exercised independently, as they were previously (NAO 2.34–2.35).

2.6 The deadline for transposition of the EU directive on the rights to interpreting and translation during the criminal justice process is 27 October 2013. The MoJ claims that the Framework model is a means of implementing the EU directive in the UK. Whilst the CJS bodies under the MoJ can be made to sign up to the Framework Agreement, for other CJS bodies (i.e. those under the Home Office) participation is optional. It follows from this that the Framework Agreement which is supposed to implement the EU directive is, in fact, optional (NAO 2.36–2.40). How is this Framework Agreement supposed to implement the EU Directive through the optional signing of supply contracts?

2.7 The “non-regression” principle of EU directives requires Member States not to do anything that would be a departure from Directive principles prior to the Directive’s implementation. We hold that the Framework Agreement deteriorates and erodes the present position on the provision of qualified competent interpreters to the CJS (NAO 2.41). With regard to the UK’s obligations under the EU directive and the Framework Agreement’s inability to fulfil them, we refer to the submissions made to this Inquiry by EULITA on behalf of its UK members APCI and ITI and associate member CIOL.

2.8 The turnover of ALS in 2011 was under £6.5 million pounds per annum, yet the MoJ awarded ALS the contract valued at £300 million (NAO 2.45). The published accounts by ALS show that the company had substantial debts (c. £1.3 million) and in 2010 “meets its day to day working capital requirements through a mezzanine funding arrangements”. The mezzanine funding was provided from the Capital for Enterprise Fund by Maven Capital Partners:

“Maven invested a total of £1.5 million from the CfE Fund in two equal tranches during 2010 to support ALS’ development plans as one of the world’s leading and fastest growing providers of translation, proof reading and interpreting services.”2

The published company accounts of ALS Ltd dated 31 May 2011 state with absolute confidence that ALS would win the MoJ Framework Agreement: “[…] the company’s growth aspirations, which will be significant following the award of the Ministry of Justice agreement.”

The contract was not awarded until 19 August 2011.

2.9 We agree with the JSC witness thebigword that: “The prequalifying questionnaire clearly did not do its job. It should have weeded out on financial robustness, ensuring that only those suppliers with the ability to deliver the service went forward” (oral evidence, Budget & Structure, p 52).

The overall PQQ award criterion was “the most economically advantageous tender”, with the assessment of all non-price criteria done by the contractor’s self-certification. No objective data is provided and no financial information to gauge the contractor’s capacity to deliver such a large contract was included in the PQQ (NAO 2.56–2.58).

2.10 The final round of the procurement process left only ALS Ltd in the running for the contract. It was remarked upon in oral evidence (Budget & Structure of the MoJ) that a final round with just one bidder was rather curious. It was during this final stage, when plans for the Tier System and the ALS assessments were fully formed, that the MoJ invited comment from stakeholders in April 2011 (NAO 4.1–4.14).

2.11 In December 2011, within months of the award of the Framework Agreement worth £300 million, ALS Ltd was bought by Capita Plc for £7.5 million. Maven, manager of the Capital for Enterprise Fund A, realised an initial return of 40% IRR on its £1.5m mezzanine investment in Applied Language Solutions following the sale of ALS to the Capita Group1.

2.12 We hold that the MoJ did not fulfil its public procurement Equality Duty in that it treated foreign language interpreters differently from British Sign Language interpreters, and did not take into account the ethnic composition of the interpreting profession (NAO 2.52–2.55).

2.13 We contend that the MoJ took the undertakings given by ALS Ltd during the procurement process at face value and made no effort to verify ALS Ltd’s claims (NAO 2.59–2.63). For example, ALS claimed in its Risk Evaluation document (Bidding documents file 2.1) that it had fully mitigated against the opposition by registered NRPSI interpreters to the contract. This is manifestly untrue.

2.14 It is not known how many interpreters ALS claimed were registered with it in order to persuade the MoJ it had the capacity to service the Framework Agreement.

Page 114 of the Framework Agreement dated 19 August 2011 states “Approximately 2500 of our 4,500 registered freelance interpreters are suitably experienced and qualified for Authority”. This claim has since been discredited. At other times since the start of the contract ALS has cited wildly varying numbers of workers. For example, by 6 March 2012 it had “over 1,800 interpreters at Tier 1 or 2 actively working on the contract” (ALS Newsletter 6 March 2012).

2.15 We believe it is likely that ALS Ltd breached section 55 of the Data Protection Act, a criminal offence. ALS Ltd systemically harvested the personal data of interpreters and translators and created worker profiles without their consent. ALS Ltd has publicly admitted it had retained personal data from its 2009 subscription to the NRPSI register (listing over 2000 individuals): “ALS said it bought some interpreters’ details three years ago from the Institute of Linguists. It claims this is the only historic data held and information is immediately deleted when requested” (BBC News, 21 March 2012). In fact, the license expressly forbade copying or processing the data.

Around 80 cases of data theft were referred to the Information Commissioner’s Office for investigation. The ICO concluded that DPA compliance by ALS Ltd was unlikely, and the Commissioner now requires ALS to take certain steps to demonstrate that it is bringing its processing of personal data into compliance with its obligations under the DPA.

2.16 No checks have been carried out by the MoJ to verify that the worker records held by ALS and the total numbers cited during the tender process are bona fide registrations, i.e. that each person consents not only to ALS Ltd holding his/her personal data, but has also signed in agreement with the ALS Terms and Conditions.

2.17 We strongly believe that the contractor’s bid was so low that delivery of the contract is unviable. Under the NA rates previously in force interpreters were paid a minimum of £85 for the first three hours at court, and £30 per hour thereafter, with travel time paid at £15 per hour and public transport travel expenses in full, or mileage at £0.25. There had been no change in these rates since 2007.

By contrast, ALS Ltd’s bid was based on hourly rates of £22 (Tier 1), £20 (Tier 2) and £16 (Tier 3) with a minimum fee of just one hour and no payment of public transport charges, just a paltry mileage rate that does not apply locally (contradicting Government policy to encourage the use of public transport).

2.18 The above gross hourly rates are unsustainable for freelance self-employed professionals.

3. The experience of courts and prisons in receiving interpretation services that meet their needs

3.1 We have compelling evidence that ALS Ltd is not providing workers in compliance with the Framework Agreement:

Tier 3 workers and other inexperienced workers sent to Court bookings.

Workers with no formal language qualifications but, for example, a university degree from a foreign university in a non-language subject.

Workers assigned jobs in the wrong language, ie Russian for Latvians and Lithuanians; Czech for Slovakians.

Workers assigned jobs without prior verification of their identity.

Workers assigned jobs without prior verification of their qualifications.

Workers assigned jobs without prior verification of their Criminal Record status.

Workers assigned jobs without prior verification of their vetting status.

Workers assigned jobs without prior verification of their right to work in the UK.

Workers assigned jobs in languages where they have no qualifications.

3.2 It is a truism that an interpreter’s performance is difficult for others, who do not master both languages, to assess. Similarly, it may not be understood by all that a very high level of skill is required in order to interpret faithfully. End users of CJS interpreting services are, understandably, accepting ALS workers in good faith.

3.3 In some cases, an interpreter’s inadequate performance and the ensuing consequences may never come to light. Interpreters are involved throughout the entire proceedings: from arrest and interview, charge, prison visits, assisting solicitors taking instructions, Magistrates’ Court hearings, Crown Court hearings and trial, sentencing, probation reports, through to post-trial proceedings such as POCA.

3.4 The reliance on interpreters in cases involving non-English speaking defendants, victims or witnesses is considerable. The scope for damage to be caused by an incompetent interpreter is very large.

3.5 Information provided by the MoJ pursuant to the FOI Act indicates that the guidance issued to court staff on how to book the appropriate tier of interpreter was scant.

On 20 January 2012, court managers were sent an extract of the Framework Agreement which also stated: “In most instances the courts should request a tier two interpreter and the ALS portal has been set to default to a tier two interpreter. However, in some cases it may still be appropriate because of the nature of the case to book a tier one interpreter.”3 This was the full extent of the training and guidance provided for HMCTS staff on using the new system.

3.6 Since the inception of the ALS Ltd contract, our interpreter members have been attending courts across the UK to monitor the attendance and performance of ALS workers. The log of ALS defaults maintained by interpreter organisations has been communicated to the MoJ at several points in time but received no formal acknowledgement.

3.7 Reports collated centrally resulted in a formal complaint sent to ALS Ltd/Capita and copied it to Justice Ministers on 22 May 2012, which logged 250 instances of non-attendance or late attendance by ALS workers causing delays and 70 instances where ALS workers were incompetent, for the first quarter (February to April) alone. A copy of this complaint was already sent to the Committee. A further complaint logging 100 incidents was sent to ALS on 29 August 2012.

3.8 Figures published by the MoJ conceded that 2232 complaints were received in the first quarter.4 13% of ALS assignments resulted in complaint. It appears the MoJ intends to publish no further figures until December 2012.5

3.9 Official figures for 2006 to 2011 show that the percentage of ineffective trials caused by interpreters not being available had never risen above 1% in Magistrates courts and 0.5% in Crown Courts. In Q1 of 2012, those figures rose to 3% and 0.7% respectively. ALS Ltd was the provider for only two of those three months, making the increase even more striking. The figures relate to ineffective trials only, not to adjournments or collapsed trials. Moreover, they relate to “interpreter availability” only and not to quality issues.

Nick Herbert MP asserted in an adjournment debate on 10 October 2011:

“We already have the unacceptable position that approximately 400 magistrates court trials and a number of considerably more expensive Crown court trials cannot go ahead as listed because the interpreter does not attend court.” In fact, the official figures for 2011 are nowhere near 400: 327 ineffective trials in Magistrates courts and 17 in Crown courts. Compare those annual figures to the ineffective trials clocked up by ALS Ltd (in two months of operation): 182 and 10 respectively for the first quarter of 2012.6

3.10 The scant data published by the MoJ on 24 May 2012 provides no information on the different Tiers of interpreters assigned to Magistrates’ Court and Crown Court assignments. We have evidence of tier 3 ALS workers being sent to work in courts.

3.11 Cases are being adjourned multiple times by ALS Ltd failing to provide a worker (see PIA complaints). After the fourth or fifth adjournment, many cases are discontinued.

3.12 Defendants are prevented from making bail applications because their solicitors cannot take instructions and are remanded in custody more frequently and for longer than necessary.

3.13 At the other end of the scale, suspects and defendants are bailed or released when ALS Ltd has failed to provide before the custody time limit expires.

3.14 Courts seem no longer to expect interpreters to be capable of simultaneous interpreting and counsel are routinely allowing extra time and a bigger budget where interpreters are involved. Simplified vocabulary is used to assist ALS workers who have never interpreted in court before.

3.15 In many reported cases, ALS workers sit in the dock mute and do not interpret a word throughout the entire proceedings.

3.16 In some reported cases the defendant for whom interpreting was being provided remarked that the ALS worker was incompetent but was ignored. In one such case, the judge threatened to have the defendant removed from court.7

3.17 The reaction by court staff, counsel, and members of the judiciary varies enormously. Judges and magistrates have summoned ALS representatives before them many times. On occasion, a wasted costs order is made against ALS Ltd. Sometimes the ALS worker is sent away and a complaint is logged. Yet, in too many instances the court decides to muddle on with an incompetent ALS worker or proceeds with no interpreter at all (See PIA complaints to ALS Ltd).

4. The nature and effectiveness of the complaints process

4.1 The complaints procedure was unpublished and unpublicised. It was not in the public domain until 22 June when the JSC published Peter Handcock’s letter of 31 May 2012 as written evidence8.

4.2 There is simply no publicised facility for solicitors and barristers to complain about ALS workers. Only those with access to the ALS Ltd portal appear able to complain. This denies end users of interpreting services such as defendants and witnesses, as well as members of the public, the right of complaint.

4.3 Complaints are dealt with in-house by ALS Ltd. There is no published undertaking of what the complainant can expect.

4.4 There is no published disciplinary framework and procedure. This is a breach of the Employment Act 2003 and a breach of Natural Justice, best practice and accepted industry standards. There is no transparency of process: a published undertaking of what an ALS worker who is the subject of a complaint can expect.

4.5 Where the same entity is responsible for the conflicting functions of work provider, supplier, regulator, assessor, registrar as well as disciplinarian, there can be no natural justice.

4.6 The ALS Ltd “Code of Conduct” is flimsy and falls far short of accepted professional ethics. Better professional codes already exist.

4.7 The 250 complaints relating to attendance and 70 complaints relating to quality (22 May 2012) have not been formally addressed by ALS Ltd to the best of our knowledge. In any event, the complainant has not been informed of any outcome.

4.8 There is no evidence that ALS Ltd workers whose incompetence has caused trials to collapse are actually removed from the ALS list (see case studies in appendix).

4.9 Crispin Blunt MP has stated that ALS Ltd workers are covered by ALS Ltd’s professional indemnity insurance.9 However, we cannot envisage how any insurance underwriter could insure against the risk of using unqualified, non-vetted workers as court interpreters, and suspect the underwriter may not be in full possession of the facts. It has yet to be tested whether the cost of collapsed trials caused by ALS workers professional negligence can be recovered through ALS Ltd’s insurers.

4.10 The figures published in May show there were 2,232 complaints over the quarter, of which 177 had not been resolved by 8 May (p.7). However, the Key Performance Indicator in the Framework Agreement states that complaints should be resolved within three working days.

Also, how are the figures provided by ALS Ltd to the MoJ independently verified?

5. The steps that have been taken to rectify under-performance and the extent to which they have been effective

5.1 It is unclear what measures, if any, were taken by the MoJ at any stage to verify:

(a)how many workers had registered with ALS Ltd;

(b)how many had been through the “compulsory” ALS assessment;

(c)what qualifications they hold and whether these were verified;

(d)how many had been allocated to each Tier;

(e)how many had been successfully vetted by Warwickshire Police;

(f)how many had actually consented to ALS Ltd’s T&Cs;

(g)how many were false profiles; and

(h)how many were registered with HMRC as self-employed.

5.2 It is clear that ALS Ltd is not meeting the unrealistic KPI it set itself, to have 95% of all languages catered for within a 25 mile radius of all sites. From the media reports alone, it is known that ALS Ltd workers have travelled from Newcastle to Ipswich, Stirling to Truro, Liverpool to Boston. In some cases the expense will be borne by ALS Ltd/Capita Plc, and at other times by the ALS worker, depending on what he or she has negotiated.

5.3 Where assignments are fulfilled, quality is questionable.

5.4 The new guidance issued in mid-February stated:

“With immediate effect HMCTS will revert to the previous arrangements for all bookings due within 24 hours at the Magistrates’ Courts. Magistrates’ Courts bookings should be made direct with the interpreter under the terms of the National Agreement. It has also been decided that we will revert to previous arrangements for urgent bookings required for bail applications, deports and fast track applications in the First Tier Tribunal Immigration and Asylum and urgent bookings in the Asylum Support Tribunal.”

5.5 The MoJ was fully aware that professional interpreters were not engaging with ALS but allowed itself to be persuaded by ALS that this was not a problem. Peter Handcock, CEO of HMCTS, told the Justice Committee (in March 2012): “The contractor overestimated the willingness of interpreters to sign up”. Consequently, the MoJ and ALS proceeded in the knowledge that the contract would not be serviced by experienced professional interpreters.

5.6 The MoJ has not availed itself of the sanctions built into the contract. Peter Handcock told the Justice Committee in oral evidence on 6 March 2012: “I made it very clear right from the outset that step one was to revert to our old arrangements, simply to roll back. Step two, if the level of performance did not improve very rapidly, would be to withdraw from the contract.”

The Asylum and Immigration Tribunals (AIT) booking centre is still handling short notice bookings to prop up ALS Ltd (step one), ALS Ltd’s performance has not improved, yet no steps have been taken to withdraw from the contract (step two).

5.7 The MoJ appears improperly biased towards the contractor and is not making use of the sanctions included in the Framework Agreement. Under clause 12 of the Framework Agreement, the MoJ is able to unilaterally deduct from the contract price being paid to ALS the additional costs to the public purse occasioned by ALS’s failings. As at 12 March 2012 the MoJ had not done so.

5.8 The Framework Agreement (p 173) outlines that Service Credits will be applied where the KPIs (98%) of “Fulfilment of all assignments” and “On time delivery of all assignments” are not met: “For every % outside of the 98% a % charge will be credited to that collaborative partner at month end against the combined unfilled/late bookings 1st hour value”.

Significantly, the KPI of 98% fulfilment of all assignments is with the exclusion of “cancellation by the collaborative partner”. In cases where the ALS worker arrives too late to be of use, turns out to speak the wrong language or is otherwise found to be unsuitable, this is not logged as a failure by ALS but as “collaborative partner/client did not attend” and is effectively logged as a cancellation and charged for even if the fault lay with ALS Ltd (Framework Agreement, p. 137). A disproportionately large proportion of bookings, 11%, were logged as cancellations10.

5.9 The MoJ’s published performance figures are not to be taken at face value. They have been collated by ALS Ltd, with no independent verification, and are presented in a skewed fashion.

ALS Ltd still does not service 100% of the HMCTS requirement and is being propped up by the AIT bookings centre, and HMCTS staff making direct bookings, tying up HMCTS resources and budget. Many small agencies are now involved in the delivery of interpreters to the courts, either subcontracted to ALS Ltd or used ad-hoc by HMCTS.

Hence ALS Ltd’s fulfilment rate of 81% does not represent a percentage of the whole, but of the proportion of bookings entrusted to ALS Ltd, minus the instances logged as “collaborative partner did not attend” (see 5.8).

Our information and inference from the MoJ’s own figures is that approximately 50% of demand is going through ALS, ie 400 requests a day, as opposed to the actual total of around 800 per day nationally (Lord McNally, House of Lords, 9 July 2012). The percentages calculated relate only to the requests made to ALS, and are therefore to be considered in that light. If ALS say they service around 81% of calls they take, that represents around 40% of the total.

5.10 As noted elsewhere, HMCTS continues to book interpreters directly and through a variety of local agencies as ALS Ltd is unable to provide the required service level. This continued “mixed economy” undermines the operation of the Framework Agreement, which was intended to create a “one stop shop” for HMCTS and police staff to use. Instead, they are duplicating the work of ALS Ltd. Expense to the taxpayer cannot be less than previously.

6. The appropriateness of arrangements for monitoring the management of the contract, including the quality and cost-effectiveness of the service delivered.

6.1 Under this Framework Agreement the entire control environment has been outsourced to the contractor ALS Ltd. ALS Ltd is responsible for all checks, recruitment, provision of management information and quality control through it complaints handling and disciplinary procedures. There is no mechanism for independent verification.

6.2 The vaunted £18 million. in projected savings has been revised to £12 million. and the MoJ has admitted that even the revised figure is unlikely to be achieved (Lord McNally, House of Lords, 9 July 2012). The continuation of other arrangements alongside the ALS Framework Agreement and the costs of that from other budgets are not taken into account.

6.3 Initiatives by our interpreter members seeking to find out more about the ALS Ltd registration procedures, terms and conditions of engagement, and online bookings portal have revealed a variety of shortcomings in ALS Ltd’s systems, checks and internal procedures vis-à-vis what the company has contracted to do.

6.4 Users who created experimental profiles were immediately offered assignments through the automated portal and by text message, even though:

they had not provided proof of address or identity;

they had not signed in agreement to the ALS Ltd T&Cs;

they had not provided proof of qualifications;

they had not undergone the “compulsory” ALS assessment;

they had not provided proof of eligibility to work in the UK;

they had not provided proof of a CRB check or higher levels of vetting; and

they were profiles in the names of household pets who were signed up offering rare animal languages such as “rabbit” and “cat”.

6.5 Similarly, bona fide workers registered with ALS Ltd as Tier 3 interpreters were offered Tier 2 court assignments including trials.

6.6 Bona fide workers registered with ALS Ltd were offered assignments in languages they have no qualifications in and had not been assessed in.

6.7 A large number of NRPSI registered interpreters found that ALS Ltd had unlawfully created profiles in their names. Around 80 of the following types of cases have been referred to the Information Commissioner’s Office for investigation:

profile created without consent, recording wrong gender or fictitious date of birth;

request to delete details pursuant to DPA 2000 ignored and profile found still to exist; and

profile still in existence with the express note “Do not contact”.

The ICO investigation concluded that compliance with the Data Protection Act was unlikely and the Commissioner now requires ALS to take certain steps to demonstrate that it is bringing its processing of personal data into compliance with its obligations under the DPA. .

6.8 Information obtained pursuant to the Freedom of Information Act in July 2012 revealed that since February 2012, Warwickshire Police had handled just 720 Non Police Personnel Vetting 3 (NPPV 3) applications for ALS Ltd of which 574 passed vetting.11

6.9 Crispin Blunt MP confirmed in a letter to John Leech MP on 13 July 2012 that just 301 of the workers on the ALS Ltd database were Registered Public Service Interpreters registered with NRPSI.12

6.10 Lord McNally explained (House of Lords, 9 July 2012) the bizarre counting practice whereby one person who works in two different foreign languages equates to two “interpreter persons”. He said: “At the moment, there are about 1,500 interpreters under contract and they are equivalent to about 3,000 interpreter persons, which means that many of them speak two or more languages.” This is nonsensical as all interpreters speak two or more languages. Furthermore, they can only operate in a single location at any given time.

6.11 It should be clear that the claims made by ALS Ltd about the number of workers contracted to it and the checks it is contractually obliged to carry out invite closer scrutiny.

Page 114 of the Framework Agreement dated 19 August 2011 states “Approximately 2,500 of our 4,500 registered freelance interpreters are suitably experienced and qualified for Authority”.

Just months later, ALS Ltd claimed on its website: “Over 3,500 linguists have already registered since August 2011 and all linguists working on MoJ assignments must complete their assessment as soon as possible”.

In March 2012, ALS Ltd had “over 1,800 interpreters at Tier 1 or 2 actively working on the contract” (ALS Newsletter 6 March 2012).

Now, according to Lord McNally, it has 1,500 workers who are equivalent to 3,000 “interpreter persons”.

The more ALS Ltd has been challenged as practices were revealed in media reports on data theft (BBC News, 21 March), household pets registered with ALS (Birmingham Mail, 9 March and BBC News, 9 August) and criminal record checks (BBC News, 9 August), the fewer workers it claims to have registered with it.

6.12 Our case studies show that the contractual undertakings by ALS Ltd only to use competent, qualified interpreters are not being met. Selected case studies are in appendix.

6.13 With regard to many areas of the delivery of the contract, what was promised on paper—in itself woefully inadequate to provide safeguards—is not even what is happening in practice. There is a vast difference between contract and reality.

6.14 The figures provided by ALS Ltd were presented so as to favourably distort them, whilst 90% of the management information allowing proper scrutiny has not been published.

6.15 The Solicitor General stated in Written Answers on 15 March 2012:

“The CPS has no central records on the number or cost of court delays or adjournments which are caused by the late attendance or non-attendance of interpreters. In order to provide an estimate of additional costs incurred because of a shortage of interpreters, if any, extensive inquiries would need to be made in relation to each court list since the new interpreter contract was implemented on 1 February 2012 and this would incur disproportionate cost”.

It is to be hoped that the National Audit Office was able to establish the ancillary costs, which include the costs of detention, transport, repeated adjournments and broken trials.

6.16 A multitude of letters and emails to a number of contacts within the Ministry of Justice have been ignored: This includes contacts with Ministers by interpreting organisations and others including EULITA, FIT, FIT-Europe and Involvis; on behalf of Interpreters for Justice.

6.17 Money saved by not engaging interpreters when required is not a saving. It is exposure to future expense by way of appeals or other litigation for breach of human rights legislation.

Conclusion & Recommendations

Conclusion

In our submission the Framework Agreement is a failure and is unsalvageable:

It fails to deliver any savings.

It exposes Justice to considerable extra expense.

It denies access to justice to parties who have inadequate English.

Contractual obligations are disregarded.

There is little or no transparency of process or management, and no serious attempt to protect Justice or public funds.

The PQQ and “competitive dialogue” processes were gravely flawed.

There are clear breaches of the European Directive, coupled with a serious misunderstanding as to the Directive’s legal force.

Recommendations

In our respectful submission the Framework Agreement should be set aside without delay.

We suggest that the previous system then be reintroduced across the board, and that a period of 24 months be set for the development of a feasible alternative which has the chance of delivering to Justice a service which improves the previous system and delivers savings. This may be achieved by a proper consultation with interpreters’ organisations as well as the National Register of Public Service Interpreters.

Failure to address the problem can only lead to unacceptable consequences and enormous ancillary costs.

September 2012

APPENDIX

CASE STUDIES

Case Study #1

T20111497 The trial of Mandra Rostas at Snaresbrook Crown Court

The trial began on Tuesday 10 April 2012 and ended on Friday 13 April when Mr Recorder King discharged the jury and ordered a retrial. He did so when under cross examination it became apparent that the defendant, who was having the benefit of interpretation in Romanian—English, had had a crucial part of the evidence misinterpreted. The word “beaten” had been wrongly interpreted into English as “bitten”. The centrality of the word to the defence case meant that the judge was obliged to take the described course of action.

The court interpreter was provided by Applied Language Solutions. The ALS worker’s name was Ms A.

The jury having been discharged, the trial Judge Mr Recorder King directed that the “interpreter” be the subject of disciplinary proceedings.

The subsequent preliminary hearing on Wednesday 18 April, to fix a date for retrial, was attended by the person reporting.

The replacement ALS worker was spoken to. Her name was Ms Cristina SHUTU12–07–2012 For Mention (Defendant To Attend)—Case Adjourned Until 14:00—11–07–2012 For Execution Of Bench Warrant—Case Adjourned Until 10:00—18–04–2012 For Mention (Defendant To Attend)—Hearing Finished For MANDRA ROSTAS—10:49—13–04–2012 Trial (Part Heard)—Case Adjourned Until 00:00–12:14—12–04–2012 Trial (Part Heard)—Case Released Until 09:30–16:13—11–04–2012 Trial (Part Heard)—Court Closed—15:24—10–04–2012 For Trial—Case Adjourned Until 16:15–17:30. She confirmed that she has no qualifications, nor any experience of Crown Court work, and works usually as a teacher of English and French. The judge at this hearing, HHJ Bing, reminded all parties that the trial judge, Mr Recorder King, had directed that the interpreter during the trial be the subject of disciplinary proceedings. Both prosecution and defence counsel said in open court that they were minded to make a wasted costs application against the interpreter.

Points to note

Since the incident, the original interpreter has been observed at a large number of hearings in the London area, including Isleworth Crown Court. Claims of robust disciplinary procedures ring hollow, and it is not known whether any proceedings have been commenced.

An article in the Law Society Gazette the following week quoted an ALS spokesman as saying, “all interpreters are qualified to the minimum standard required to work in court”. Given that Ms SHUTU confirmed she had no qualifications at all for legal interpreting, it is clear that the company’s official spokesman’s statement was mendacious.

As far as is known, no application for wasted costs has been made. Counsel estimated costs totalling £25,000 to £30,000 pounds.

Had Ms A been frank at the moment of making the error then there would have been little problem. Interpreters make mistakes, and professionals own up immediately. Ms A did not. Indeed it took Counsel’s questions to reveal that the mistake had been made, and Ms A admitted she had known she had made the mistake at the beginning of the trial. It was this failure which led directly to the trial being abandoned.

Case Study #2

Miss Z is a Chinese national, and has been studying law in the UK for over four years

Miss Z is a student in the UK with no right of abode here. She has been studying law under the terms of a student visa, subsequently renewed.

In 2012 it was suggested to her that she work as a freelance interpreter for a company called Applied Language Solutions, and she made an application to do so.

She has no security clearance, police vetting or Criminal Records Bureau check, although she was told to make an application for a Criminal Records Bureau check by way of a third party company, since ALS was unable to make such an application on her behalf.

She has received no advice from ALS as to registration for self-employment nor have they advised her to register with the UK authorities for Income Tax purposes, nor has she done so.

She has attended a language assessment at the invitation of ALS, but has not been advised of the result.

She has been offered and accepted fourteen assignments at a range of Courts.

She alleges she was explicitly told by ALS that working on a student visa would not be a problem and was allowed.

More recently she was informed by a friend that working in a self-employed or freelance capacity was expressly forbidden under the terms of her student visa, and from that date has not accepted any further assignment from ALS.

Points to note

Here we have an unqualified an inexperienced young student, “interpreting” at a highly demanding level.

She has had no CRB check, and her evidence is that the company told her to get it done by a third party as ALS was not able to do it.

This person was sent to do freelance work on a non-EU student visa. That is illegal and renders her potentially liable to instant deportation and ALS to a fine not exceeding £10,000 per event.

How many more individuals are working illegally for ALS, and who have not registered as self-employed for tax and national insurance purposes?

There has been a wilful disregard not only to imposing the conditions of the Framework Agreement, but also for the law.

Case Study #3

T20117043 The trial for murder of Rajvinder Kaur at Winchester Crown Court on 13 July 2012

Mr Mubarrak LONE arrived late. His wife was the ALS worker previously sent to interpret in this case. She sent Mr Mubarrak Lone in her stead, in breach of the ALS “Code of Conduct”.

Junior Defence Counsel, Mr. Sukhdev GARCHA speaks the language of the witness, and so was able to make the following observations; 1) When interpreting the oath Mr Lone said “swear by Allah” instead of “Waheguru”, thereby changing the religion of the witness from Sikh to Muslim; 2) Several parts of the evidence were omitted; 3) He interpreted “bitter” instead of saying “irritable” in answer to a fairly crucial piece of evidence; 4) Witness evidence was constantly having to be interrupted and gone over again.

Counsel requested a break and discussed the position with the Judge, Mr. Justice Burnett. Mr. Lone was then recalled to the witness box and asked if he was registered with ALS. He said he had sat the assessment a few weeks ago and was still awaiting an interpreter number. He was asked how he came to be at court and replied that his wife, Mrs. Sabiha LONE, had been contacted by ALS but as she had another commitment she had sent him in her place. The Judge released the interpreter and adjourned the case until Monday 16 July thereby wasting an entire court day.

Points to note

Without the court’s knowledge or consent a relative of the ALS worker was sent as a replacement.

The replacement was apparently unqualified, not vetted and unregistered.

The replacement was unable to interpret legal terms at even a basic level.

Case Study #4

T20117043 The trial for murder of Rajvinder Kaur at Winchester Crown Court on 16 July 2012

The case was listed for 11.30 but no ALS worker arrived until 13.30. She was a nervous lady called Sangeeta, who said she was a beautician in Southampton, the location of the murder, and that her clients had been discussing the case with her. She had interpreted in hospitals before and this was her 5th or 6th ALS job. She still had no ALS ID card.

During the course of interpreting it became evident that she had a very poor knowledge of English. She did not know the meaning of the words “friction” and “deterioration”, both being central to the evidence. After the witness (the same witness as Friday 13 July where the problem with another unqualified interpreter Mr. Lone resulted in an adjournment and the witness Mr. S. having to return on Monday) finished his evidence, counsel were discussing her inadequate level of interpreting. Sangeeta approached an NRPSI interpreter who was present, and in the presence of Punjabi speaking Junior Defence Counsel, Mr. Sukhdev GARCHA, admitted she did not know what “deterioration” meant and asked the NRPSI interpreter to explain the meaning to her. After that, two witnesses had been lined up to give evidence via video link from India. Sangeeta said she had never done this before and it was suggested that the NRPSI interpreter take her place. In open court, with the discussion being recorded, the judge, Mr. Justice Burnett asked if the NRPSI interpreter would be willing to do so. The NRPSI interpreter declined, saying it was the responsibility of ALS to provide competent interpreters.

This was observed by Punjabi speaking Junior Defence Counsel Mr. Sukhdev GARCHA. When Sangeeta was required to interpret for the video link Mr. GARCHA sat next to her to check her interpreting and to prompt her whenever she made a mistake or omission.

Points to note

One and a half days of court time was lost.

The quality of interpreting was recognised by all parties present to be very poor.

It is not known whether Sangeeta had any legal interpreting qualification.

By her own admission, Sangeeta had no experience of legal interpreting.

It has to be questioned whether it is acceptable practice for counsel to act as “interpreter support” for a worker who is wholly unable to discharge her duties according to the interpreters’ oath.

1 This submission is made on behalf of the following representative bodies which are partners in the Professional Interpreters for Justice campaign: Association of Police and Court Interpreters (APCI), Institute of Translation and Interpreting (ITI), National Register of Public Service Interpreters (NRPSI), National Union of Professional Interpreters and Translators (NUPIT)/UNITE the Union, Professional Interpreters’ Alliance (PIA), Society of Official Metropolitan Interpreters (SOMI UK), Society for Public Service Interpreting (SPSI). Additionally, the Chartered Institute of Linguists (CIoL) is a participant in the Campaign’s Steering Committee as an observer, and in common with several of the above bodies will also be submitting evidence in its own right.

2 http://www.mavencp.com/maven-exits-another-capital-for-enterprise-fund-a-investment.aspx

3 www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/courts-tribunals/foi-76434.doc

4 http://www.justice.gov.uk/downloads/statistics/mojstats/language-stats/language-service-stats-jan12-april-12.pdf

5 http://www.justice.gov.uk/statistics/statistics-publication-schedule#december12

6 Table 3.3 and 4.3 http://www.justice.gov.uk/downloads/statistics/courts-and-sentencing/q1-2012/court-stats-tables-q1-2012.xls

7 Manchester Evening News, 19 April 2012 Court official left in tears after outburst at Rochdale sex gang trial

8 Letter from Peter Handcock to Justice Select Committee, 31 May 2012 http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/courtinterpreters.pdf

9 Letter from Crispin Blunt Mp to John Leech MP, 13 July 2012 http://www.linguistlounge.org/images/Crispin_Blunt_to_John_Leech.pdf

10 K. Beresford, “Lies, damned lies and statistics”. In: ITI Bulletin.

11 FOI response 2012-00336, 19 July 2012 http://www.linguistlounge.org/index.php/all-articles/the-letters-page/515-answer-to-foi-request-regarding-vetting-for-als-applicants

12 Letter from Crispin Blunt Mp to John Leech MP, 13 July 2012 http://www.linguistlounge.org/images/Crispin_Blunt_to_John_Leech.pdf

Prepared 4th February 2013