Justice CommitteeSupplementary evidence from the Professional Interpreters for Justice following the evidence session on 23 October 2012

In addition to the Justice Select Committee inquiry, the Public Accounts Committee is holding a parallel inquiry into Ministry of Justice Language Services, to which inquiry officers of the Association of Police and Court Interpreters gave oral evidence on behalf of Professional Interpreters for Justice on 15 October 2012.

Given the overlap between the two inquiries, I feel that pragmatism dictates I should provide information to both committees and with reference to the evidence under consideration by both committees.

1. Professional Interpreters for Justice

Eight membership organisations are united in the Professional Interpreters for Justice Campaign, along with non-membership organisations. Figure 1 in appendix 1 shows there is overlap between our respective membership, and between us we represent upwards of 2,320 registered and qualified interpreters.

2. National Agreement

Figure 2 in appendix 2 shows that the professional linguists we represent are those who were approved for use in the Criminal Justice System under the terms of the National Agreement on the Arrangements for the use of Interpreters and Translators in the Criminal Justice System in England and Wales (1997; revised 2002; 2007; 2011).

3. References to Shortcomings of the “Old System”

As stated during evidence on 23 October, interpreters and their professional organisations wanted the Ministry of Justice to work with the profession to build on what had already been achieved by the establishment of a National Register and the associated professional qualifications, and the decades of policy development that had led to the National Agreement.

3.1 Lack of enforcement of the National Agreement

The “old system” consisted of the guidance set out in the National Agreement, which was insufficiently implemented by CJS agencies and not at all enforced by the Ministry of Justice. Interpreters wanted the National Agreement to be properly enforced.

3.2 Diversity of arrangements in practice under the “old system”

Alongside adherence to the National Agreement and its high standards of professional qualifications and registrations, CJS agencies used diverse local arrangements ranging from local lists and smaller commercial agencies offering no safeguards. This perceived shortcoming was also the result of the MoJ failing to enforce the National Agreement. This has not changed under the Framework Agreement.

3.3 Complaints procedure under the “old system”

Where an interpreter was drawn from the sources recommended by the National Agreement they were subject to a code of conduct and to disciplinary procedures. NRPSI, CIOL, APCI and ITI all have codes of professional conduct and transparent, published procedures including an appeals procedure. Conversely, where an interpreter was not drawn from National Agreement sources, there was indeed no recourse to any disciplinary procedure.

It has been stated that the NRPSI complaints procedure was too slow and did not allow for the suspension of an interpreter pending investigation. The fact is that interpreters complained about could not be suspended before they had had a proper hearing. The outcome of complaints received is now published online by the NRPSI.

Co-operation overseen by the MoJ could have resulted in more stringent implementation of the National Agreement, greater incentive to become professionally registered, and the ability for organisations to share information about disciplinary hearings.

4. Lack of Past Management Information

It has been repeatedly stated that there was no audit trail for the use of, and cost of interpreters and translators by HMCTS. Reports by the Runciman Commission (1993) and Lord Justice Auld (2001) had recommended an audit trail be kept, but neither HMCTS nor the MoJ acted on this recommendation.

However, good records on the use of interpreters were kept by many police forces and these had been collated by interpreter organisations over the years. It is not true that the proportion of short-term bookings was an unknown quantity.

5. Reduction and Restructuring of Fees

Under the Framework Agreement, fees due to interpreters were reduced and restructured to such an extent that ALS workers are taking home less than the minimum wage.

For reasons that were set out in a thorough response to my Freedom of Information request (not included), the National Audit Office concedes that its report relied on financial information that was not the relevant information, and consequently made certain errors in its modelling of the losses suffered by professional interpreters.

Professional Interpreters for Justice has made a comparison between the previous National Agreement rates and the current ALS/Capita rates, showing that ALS/Capita workers are taking home less than the minimum wage in many cases. Please see the comparison tables with commentary in Appendix 3 for the true scale of the losses suffered by interpreters.

6. Access to the NRPSI and who Funds it

It was incorrectly stated in the NAO report, and repeated in oral evidence, that the registration fee for interpreters registered with NRPSI had been abolished in April 2011 when the NRPSI was reconstituted (NAO p.9, 1.5).

Prior to 2011, NRPSI was funded by subscription fees from end users (police forces, HMCTS, local government organisations, NHS Trusts) as well as by interpreters’ registration fees (around £90). When the NRPSI became independent of the CIOL in April 2011, access to the register was made free of charge for users, whereas interpreters now have to pay a £130 registration fee to fund the NRPSI’s running costs. Interpreters do this because they care about professional standards and an independent regulator. The NRPSI register is now freely accessible online to all.

7. Level of Qualifications Required under the FWA

7.1 Tier 1

The new top tier, Tier 1, effectively mimics the previous minimum standards under the National Agreement. The qualifications are at Level 6. Tier 1 interpreters must also sit the “compulsory” (yet non-existent) ALS assessment.

We doubt that these criteria have been met and verified for all 677 Tier 1 workers Capita currently uses.

Now, the default setting for HMCTS bookings is for Tier 2 interpreters (compared with T1 as the minimum standard across the board under the National Agreement). A Tier 1 interpreter may accept a Tier 2 assignment but will only be paid at Tier 2 rates.

7.2 Tier 2

Previously, those placed in Tier 2 would not have qualified to work in CJS interpreting. Tier 2 workers must have:

(a)“Partial DPSI” (English Law option) ie the interpreter must have passed all modules with the exception of component 3b (written translation from English);

Comment: Interpreters are often required to provide (sight) translation of documents in both languages in the course of their CJS work. The DPSI is only awarded to those who successfully complete all components of the examination; the notions of a “partial DPSI” or a CJS interpreter without proven written skills are risible.

(b)A degree in linguistics, English philology, Modern Languages or MA in Teaching of English, or other language related diplomas where English figures as part of the course completed.

Comment: None of the above degree subjects, (with the exception of a degree level qualification with at least two interpreting components and two translation components, including consecutive and simultaneous interpreting and sight translation1) are recognised interpreting qualifications. Neither philology (the study of language in written historical sources; a combination of literary studies, history and linguistics), nor linguistics (the scientific study of language), nor English language teaching, have any relevance to legal interpreting.

In addition, Tier 2 workers must have (in all cases):

Previous or current employment in criminal justice services in their countries of origin, legal training in the UK or abroad, or other exposure to criminal justice work through other channels is also acceptable (volunteer and/or paid work in the community for police services or work for Victim Support, for example);

University level education (any degree);

At least 100 hours public sector interpreting experience;

References; and

A pass at the assessment centre to the tier two standard.

Comment: In other words, according to the Framework Agreement a “partial DPSI” by itself is not enough and must be supplemented by a degree, experience in criminal justice and public service interpreting, references, and the “compulsory” (yet non-existent) ALS assessment.

We doubt that these criteria have been met and verified for all 303 Tier 2 workers Capita currently uses.

7.3 Tier Three

The interpreter must have one or more of the following:

Demonstrable experience in the public sector with appropriate linguistic background; plus

Formalised basic interpreter training including one of the following:

(a)the Workers Educational Association (WEA) programmes.

Comment: This is a Level 3 Award (Foundation/A-Level standard).

(b)Bi-Lingual Skills Certificates,

Comment: The Institute of Linguists Educational Trust Certificate in Bilingual Skills (CBS) is NQF accredited to Level 3 (Foundation/A-Level standard). It is not an interpreting qualification.

(c)Community Level Interpreting Degrees under the NVQ certification system.

Comment: There is no community interpreting qualification at degree level. NVQs in interpreting only exist for sign language interpreting.

The Certificate in Community interpreting and Level 3 Award in Introduction to Community Interpreting Skills are QCF accredited to Level 3 (Foundation/A-Level standard) whereas the Award in Understanding Community Interpreting (QCF) is just Level 1.

Together with:

References; and

A pass at the assessment centre to the tier three standard;

It is also desirable for tier three interpreters to have at least 100 hours public sector interpreting experience.

We doubt that these criteria have been met and verified for all 132 Tier 3 workers Capita currently uses.

8. Number of Registered & Checked Interpreters

8.1 National Register of Public Service Interpreters

The National Register of Public Service Interpreters offers free and open access to over 2,200 interpreters listed in 101 languages. Interpreters registered with National Register are qualified, have agreed to abide by a Code of Professional Conduct and can be held accountable if they break that code. In addition, they have proven experience and have an enhanced CRB check as a minimum—many have higher levels of clearance such as a Counter-Terrorist check or Home Office Security Check. Re-registration is annual and subject to certain criteria and payment by the interpreter of a registration fee.

8.2 Number of NRPSI interpreters registered with Capita/ALS

It was established by the NAO report in September 2012 that ALS only had 301 NRPSI registered interpreters. In oral evidence, Capita employees stated there were now 400 NRPSI interpreters signed up to ALS. The best qualified refuse to service this contract, both out of principle and because they cannot afford to work for the low rates.

It was established by the media and by an investigation by the Information Commissioner’s Office that ALS had unlawfully harvested the personal details of NRPSI interpreters and created profiles in their names and without their consent, in breach of the Data Protection Act.

8.3 Number of workers signed up to Capita/ALS

The charts and tables in appendix 4 show the numbers of workers Capita/ALS now says it has in each Tier and, by comparison, the number of those who were demonstrably vetted and checked at different points in time.

Total numbers of workers registered with Capita are compared with the wildly exaggerated numbers claimed at various times to have signed up. The same misrepresentations were included in the tender documents, where ALS claimed to have 3,500 linguists registered with it.

8.4 Checks currently being carried out by Capita/ALS

The company was not able to give firm numbers or assurances about the number of workers whose qualifications and references had actually been checked. Nor was it able to assure the Public Accounts Committee that all of its Tier 2 workers hold a degree.

Since the oral evidence hearing took place, on 1 November, Capita-TI sent emails to some workers registered with it, asking them to provide proof. It is clear that the contractual terms regarding the appropriate qualifications and CRB checks for those servicing the contract have been flagrantly disregarded until now. Among those receiving the email, despite ALS/Capita stating that such profiles had been removed or can’t be found, was the infamous Masha the cat. Jajo the rabbit is still able to change his password but his account has been disabled and he no longer receives emails from ALS/Capita.

Where proof of qualifications or experience is received from abroad, it is not clear what procedure Capita has in place to verify the equivalency of qualifications or veracity of references.

8.5 Ratio of interpreters to language listings

According to Capita’s own figures, the number of languages spoken by ALS workers in different tiers is as follows:

Tier

Workers

Language listings

ALS Worker to Language Ratio
in October 2012

1

677

1,332

1.97

2

303

604

1.99

3

132

281

2.13

Total

1,112

2,217

1.99

ALS Worker to Language Ratio in May 2012 (NAO report)

1,340

2,332

1.74

A very large proportion of Capita/ALS workers work in two or more foreign languages, and this tendency has increased since May. Compare the above ratios to the ratio of professionally qualified NRPSI interpreters working in more than one foreign language:

Interpreter to Language Ratio
in May 2012 (NAO report)

NRPSI

2,241

2,609

1.16

There are strong grounds to suspect that ALS workers are working in languages in which they possess no qualifications. An independent audit of the ALS database is urged.

9. Quality of Interpreting Provided under the Framework Agreement

Despite the contractual obligation for ALS to provide data on the different Tiers of workers used for HMCTS assignments, the MoJ claims that it does not hold this data. Given that Tiers 1, 2 and 3 are paid at different rates, how can the MoJ audit whether it was correctly invoiced by the contractor if it is not in possession of this information?

With Tier 1 being the equivalent of the National Agreement’s minimum standards, it should be clear that quality has been affected by the introduction of tiering.

Failure to provide this information as specified in J2 of the Framework Agreement places Capita in breach of contract.

10. The Tiering System

It was established by the NAO report and the oral evidence hearings that the Tiering system was in fact approved by nobody and was unanimously rejected by professional experts. The NAO report made the recommendation (in 3.16), for the Ministry and Capita/ALS to seek, and publish, independent advice about the adequacy of the new tiering and assessment regime as a high priority.

We contend that overwhelming advice has already been received by the various inquiries and by the Ministry of Justice, from independent associations and professional institutes of considerable standing, which has unanimously rejected the tiering and assessment as wholly inappropriate and inadequate.

Since the tiering and assessment are such integral aspects of the delivery of the Framework Agreement, the contract rests on false premises.

Here, a procurement decision was taken by people who lacked the appropriate expertise, resulting in undesirable changes to Justice policy and sidelining of the existing professional structures.

11. The “Compulsory” Assessments

It was a key feature of the Framework Agreement that ALS would assess all interpreters, without exception. Initially, a fee was payable for the “compulsory” assessment. According to a Freedom of Information response by Middlesex University, no contract was yet in place by 16 September 2012. Yet, according to other evidence, Middlesex University gave notice that it wished to suspend its contract with ALS as early as 10 October 2011 and the contract was subsequently suspended on 17 February 2012. Clearly, the contract cannot have been in existence for long before it was found to be unworkable.

No ALS workers have been assessed since February, even though assessment is an essential criterion for working on the contract. This places ALS/Capita in material breach of the Framework Agreement.

The tender documents and the Framework Agreement not only specified that assessments would be carried out, but that they would be carried out by Middlesex University.

The collapse of the contract between Middlesex University and ALS/Capita places ALS/Capita in material breach of the Framework Agreement.

12. Ancillary Costs

The contract’s penalty provisions, of which the MoJ has only recently availed itself, fall far short of giving financial recompense for the chaos caused to human lives and the resulting additional cost to the tax-payer.

12.1 “Off-contract spend”

The MoJ have provided estimates of the ancillary costs borne by tax-payers as a consequence of ALS/Capita’s failings. The “off-contract spend”, ie the cost of HMCTS continuing to engage interpreters directly at the old National Agreement rates and thereby bypassing ALS/Capita, is estimated by the MoJ at £4 million. Compared with the projected “New contract spend” of £10 million, this shows the volume of bookings anticipated to be dealt with directly is around 30% of the total.

The only evidence provided with regard to the volume of HMCTS interpreter bookings bypassing ALS was a figure of 20% provided by Peter Handcock. As has been noted repeatedly, the ALS performance figures do not reflect the company’s fulfilment against 100% of the entire HMCTS requirement, but against somewhere between 70% and 80% of the total requirement.

If the contract were to be rolled out in full, including its use by CPS trusts, it will collapse within a matter of days because ALS/Capita cannot cope with the demand and cannot cope with short notice bookings.

12.2 “Cost of ineffective trial increase”

The cost of ineffective trial increase in Magistrates’ Courts is estimated at £60k; the cost to other jurisdictions is unavailable.

It should be clear that the estimated cost of £60k is unrealistically low. The definition of an “ineffective trial” in official statistics does not account for (repeated) case adjournments or remands due to an inability to grant bail and the broader associated costs of detention, transport, relisting, attendance of all parties. Evidence has been submitted of hundreds of cases before the courts that were (repeatedly) adjourned due to ALS/Capita’s inability to provide an interpreter, with defendants unable to apply for bail remanded in custody in the interim.

Ancillary costs caused by inadequate interpreting services also stretch to post-trial proceedings such as the recovery of Proceeds of Crime. Potential losses in terms of irrecoverable proceeds of crime where a prosecution collapses due to interpreter error are considerable. Damages claims and appeals by those denied a qualified interpreter are sure to follow.

The cost of one collapsed Crown Court trial will easily overshadow the £60k projection made by the MoJ. It remains to be tested whether the professional indemnity insurance arrangements—if there are any—that cover Capita/ALS workers will be adequate to meet the damages in the event of a trial collapsing due to interpreter error.

13. Alleged “Interpreter Intimidation Campaign”

In his evidence before the Justice Select Committee, Gavin Wheeldon alleged that professional interpreters who opposed the Framework Agreement had orchestrated a campaign of intimidation, but he was unable to offer concrete proof of the incidents he cited. Similar allegations were already published by Wheeldon on 15 February 2012, both online and sent to ALS workers by email.

Both committees have heard that some professional interpreters who are not working under the Framework Agreement have been attending courts to observe cases involving an interpreter. Observing other interpreters at work is a recommended practice for Continuous Professional Development. We accept that it may well be intimidating to an unqualified, inexperienced novice who is fully out of their depth interpreting in court, to be observed and monitored by a qualified, experienced, registered professional interpreter. It goes without saying that professional interpreters monitoring cases in court did so discreetly, unobtrusively and courteously.

The Professional Interpreters for Justice campaign by united interpreter organisations has, from the start, acknowledged colleagues’ right, as independent freelancers, to choose to whom they will or will not provide their services. The role of professional organisations has been to provide information to our members and put them in contact with one another; the widespread boycott of ALS and substantial boycott of direct HMCTS bookings are the actions of members at grass-roots level. We fully refute Mr Wheeldon’s allegations of organised intimidation.

14. Provision of Translation Services under the Framework Agreement

The matter of translation services provided to the courts and other CJS agencies by Applied Language Solutions has not been considered by either committee, and in actual fact could warrant an inquiry of its own. Under the same Framework Agreement, ALS/Capita now provides translation (ie written) services to the Criminal Justice System and presumably deals with evidential documents, transcripts of interviews under caution, and incoming and outgoing Letters of Request for International Legal Assistance.

Not much is known by our organisations about the functioning of this side of the contract, except that is heavily reliant on computer-assisted translation using ALS/Capita’s bespoke software. A recent recruitment email sent by Capita-TI to translators offered the same rate of £60 per 1000 words for all languages, which rate is well below accepted market rates, even in the CJS sector.

All the concerns that have been raised in respect of ALS/Capita’s suitability to provide appropriately qualified and experienced interpreters to the Criminal Justice System are equally valid regarding the company’s ability to provide high quality professional translators to the Criminal Justice System. The more CPS work is entrusted to ALS/Capita, the more acute these problems will become.

Conclusions

The contractor has been in material breach all along.

The adoption of the Tiering system was based on lies and misrepresentation.

The contractor has not been carrying out checks on workers; a breach of contract.

The contractor currently has no assessment system in place; a breach of contract.

The contractor is unable to reconcile its conflicting functions.

The MoJ has not yet undertaken the necessary steps to independently audit its contractor’s worker database, self-reported performance figures and invoicing.

The MoJ and the contractor sought to bully professional interpreters into conforming.

The MoJ and the contractor knowingly allowed unchecked amateurs to interpret in the courts; a breach of contract.

The consequences of the MoJ’s refusal to engage with the profession have been disastrous.

The Framework Agreement is unsalvageable.

November 2012

1 According to the NRPSI entry requirements, published at http://www.nrpsi.co.uk/pdf/CriteriaforEntry.pdf

Prepared 4th February 2013