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Justice Committee - Minutes of EvidenceHC 645
Taken before the Justice Committee
on Tuesday 23 October 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Nick de Bois
Examination of Witnesses
Witnesses: Madeleine Lee, Director, Professional Interpreters’ Alliance, Nick Rosenthal, Chair, Institute of Translation and Interpreting, and Ted Sangster, Chair, National Register of Public Service Interpreters, gave evidence.
Chair: Good morning, Ms Lee, from the Professional Interpreters’ Alliance, Mr Rosenthal, from the Institute of Translation and Interpreting, and Mr Sangster, from the National Register of Public Service Interpreters. We are very glad to have your help in our inquiry. In fact, there are two inquiries going on, because the Public Accounts Committee has been looking at the contract from the public expenditure angle, in particular, but we have had a longer-standing interest in how the courts are served by interpretation services. Of course, we also have an interest in how the Ministry of Justice, which we oversee, manages-and whether it is capable of managing-major contracts, of which this is an example. We are very glad to have your help this morning. I ask Mr de Bois to open the questions.
Q1 Nick de Bois: Good morning, everyone. I will open, appropriately, on the subject of the previous system for the provision of interpreting and translation services. It struck me that the National Audit Office had agreed that the MoJ had "strong reasons"-I think those are the words it used-for changing the old system. In my first question, I would like to explore that with each of you. To what extent were interpreters dissatisfied with the previous arrangements, and why? I will start with Ms Lee.
Madeleine Lee: Interpreters then-that is, from about 2005 onwards-wanted exactly the same as they want nowadays: they want a profession that is properly regulated and that has a certain set of professional standards and safeguards. We heard Martin Jones mention in his oral evidence to the Public Accounts Committee last Monday that he was receiving a lot of complaints from interpreters about the old system and that, in response to that, the Ministry of Justice organised what it called some road shows in 2009. I can tell you that those road shows were not proper consultation. When interpreters were invited to attend the road shows, the contemporaneous correspondence, which I still have, did not mention anything about outsourcing or consultation. It is true that we experienced problems with the old system, in the sense that the National Agreement was only a guidance document. It was not sufficiently implemented in practice, and the problems we experienced then were, effectively, the same. There were unregistered, unqualified, inexperienced people working in the profession, because there were all sorts of different routes by which the justice agencies would commission interpreters. We all wanted tighter regulation and a clearer definition of what criminal justice interpreters should be.
Q2 Nick de Bois: Could I stop you there to ask one other question on that? Are you therefore sympathetic to the argument that trying to centralise the process on a more conforming, consistent basis was a good thing, in principle?
Madeleine Lee: We are sympathetic to the principle, but the way it was executed bypassed all of our professional structures.
Q3 Nick de Bois: We will come to that. I am just trying to assess the landscape that led to the changes.
Madeleine Lee: We would have liked a more co-operative approach between the Ministry and the profession.
Q4 Nick de Bois: Thank you. Mr Rosenthal, could I ask you to comment on the same question?
Nick Rosenthal: You can. I will start a little further back, if I may. There is a Dylan Thomas book that talks about everything you want to know about the wasp except why-and the why is often important. Why was court justice interpreting in the UK regulated? Why did Government take a keen interest? We go back to the early ’90s, to the Begum case, in which a lady was given an interpreter in an English court who did not speak her language. The unfortunate lady was found guilty of murder, and only at appeal did it come out that justice had not been served. That is really the heart of the whole matter-justice must always be served. Quite rightly, Government and the professional bodies talked with one another, and there was a mood of "What can we do here to improve this?" You will have to forgive me, as it slightly predates my close involvement, but we had things like the Runciman report from 1994, I believe. We then had Lord Justice Auld’s report in 2001. We have mentioned the National Agreement and have done so as if it were one thing. Actually, it was an evolving, moving, regularly reviewed thing. I believe it was reviewed in 2004 and 2007. There were ongoing and constant efforts to make it better. No one ever claimed that any system can be perfect.
Q5 Nick de Bois: How did the complaints that you were receiving from members materialise? What sort of level of complaints were you getting? Can you provide more examples of why people were dissatisfied? I am really trying to establish the level of dissatisfaction.
Nick Rosenthal: Within my own organisation, the Institute of Translation and Interpreting, we were not getting massive levels of complaint, but bear in mind that we are a broader church than just court and police interpreters, although we certainly have a number of those among us. I think the main concern among our members was and always has been about interpreters who are not fully professionally qualified and not appropriately experienced working in the courts. Even under the old system, where the idea was that people must be registered with the National Register of Public Service Interpreters-NRPSI-there were still too many instances of people working in the courts who were not appropriately registered with NRPSI, which set a clear bar in terms of qualifications in that respect.
Q6 Nick de Bois: So it was a register, rather than a qualification level.
Nick Rosenthal: Again, that question slightly predates me, but I believe that we would best describe NRPSI as a register that recognised qualification levels. That is more Ted’s area.
Q7 Nick de Bois: Thank you. I turn to Mr Sangster.
Ted Sangster: I will give a straightforward answer to your original question and repeat what Madeleine has said. Interpreters then wanted the same as they do now. We want a profession that uses and provides access to highly and appropriately qualified interpreters. At that time, in the context of the National Register, there was a particular concern among interpreters about the system that was in place, which allowed access to the register on payment of a licence fee to appropriate bodies. Concern was expressed to the register about that, in that it gave agencies the spurious opportunity to indicate that they had access to over 2,000 interpreters and to promote themselves. That has now changed. Now, as then, interpreters and the register are seeking longer-term statutory protection of title for legal interpreters and translators, as is the case in other EU states. From the point of view of the MoJ, these expressions of concern a few years ago included anecdotal statements-or evidence, if you can call anecdotal statements evidence-which were used by Martin Jones to explain and promote the reason for making some changes, about levels of dissatisfaction with the control, if you like, and the disciplinary procedures within the profession, as managed, to some extent, by the National Register. At the time, we sought to speak to Martin Jones and his colleagues to obtain the facts on that. We could not then, and we have not since, so it was very difficult for us to verify and do something about that.
Q8 Nick de Bois: Are you referring to complaints about professional interpreters and how they were dealt with?
Ted Sangster: Yes.
Q9 Nick de Bois: When you did have complaints about professional interpreters and issues with their performance, how were they dealt with under the previous system?
Ted Sangster: Under the previous system-the present system builds on that, with some improvements-a complaint was made to the National Register and was put to a screening body made up of lay and interpreter members to identify whether there was a case to be investigated. If there was such a case, it was passed to the disciplinary committee, which sought evidence from all parties and undertook a hearing that all parties were able to attend. A view was then taken as to the validity or otherwise of the complaint and, if it was found to be valid, what penalty was appropriate. Those penalties went from warnings through to suspension and dismissal.
Q10 Nick de Bois: There is some criticism that it was not timely and somewhat inefficient-a bit of a laborious process. Is that fair?
Ted Sangster: There are two aspects to that. I will deal first with the second one-that it takes a lot of time. It takes time because we are a voluntary regulator. We do not employ the interpreters, so we do not have the ability to say to the interpreter, "This allegation has been made, so we are not using you." We go through a due process, the bones of which I have outlined, which gives protection both to the interpreter and to those making use of interpreters, because to reach a conclusion any investigation needs to be done through a due, fair and just process. It can take time to gather the evidence-particularly, for example, if a judge has made known his view that a complaint needs to be made. A clerk would make that and we would need to seek evidence on it, which might involve some further dialogue with the judge or others involved. That can take a bit of time.
On the other point-your first one-yes, we hold our hands up. In the previous organisation, we had let things fall behind, and things were taking longer than they should have done, for a variety of reasons.
Q11 Nick de Bois: Finally, I have a question for Ms Lee. Do you think that you encouraged the MoJ to try to fix what was wrong with the old system? Did you make this point clear enough before the new framework agreements were put in place, or was it the case that at the time-I know looking back is difficult and hindsight is a wonderful thing-you accepted the principle of a completely new framework agreement and contract?
Madeleine Lee: Interpreters approached the Ministry of Justice and the OCJR, which at the time was running the so-called interpretation project, in good faith, because we hoped that a partnership could be brought about between the Ministry and the professional bodies, to make things better for everybody and to move towards statutory protection. Nothing was ever mentioned to us, at any rate, about outsourcing or a potential framework-certainly not at the 2009 road shows.
Q12 Chair: Can you be careful about how you use the word "outsourcing" here? It is not so much outsourcing or not outsourcing; it is outsourcing to what I take to be freelance interpreters or outsourcing to a company that then employs people in an employed capacity. Is that right?
Madeleine Lee: Yes, indeed. The difference between then and now is that previously, registered public service interpreters-all of whom are freelance, self-employed individuals-would be called directly by courts, police forces and other criminal justice agencies and would be paid directly. Now that is all done through one centralised portal. We were told that the rationale for that was to save time and money. In that case, you outsource the payroll function and the booking function as discrete functions and continue to use the approved lists that have been established through decades of policy development, from the Runciman report onwards, through the Auld report and the various incarnations of the National Agreement.
Nick Rosenthal: May I clarify Sir Alan’s comment? Sir Alan, you said that the old version was self-employed interpreters and the new version is one outsourced private company that employs people. That is not quite correct. There is an outsourced company that, in turn, continues to use self-employed interpreters.
Chair: Thank you for that clarification.
Nick de Bois: Thank you, Chairman. I sense people now wish to move on to talking about the new arrangements.
Q13 Steve Brine: Good morning. Let us talk about the procurement process. My question is for all three of you. What outcome would you like to have seen from the procurement process, had you been involved, as you would see it, properly and substantively from the outset? Let us start with Mr Sangster.
Ted Sangster: We have just been exploring what the problems were for the Ministry of Justice and both sides. It has been acknowledged that there were some problems. That is the essence of my response to your question of how we would have preferred things to have gone. We would have preferred to have addressed collectively the issues and problems that were in evidence and the concerns, whether justified or not, at the time, and to have worked towards a revision of the existing system, based quite securely on the National Agreement, to address the concerns and to bring in some of the improvements and efficiencies that have just been touched on.
The profession and the organisations have done that. The National Register was previously part of the Chartered Institute of Linguists, which was very much engaged with these concerns and had the courage to make a change and to respond to them. It set up the National Register as it now is-a completely independent body-in April last year. We are made up of a board of lay members and practitioner members. We have made a number of changes, partly in response to some of the previous concerns. We have sought to engage with the Ministry of Justice and others, working together, in our view, to achieve a common solution, rather than having one imposed on the profession-as has happened, unfortunately-with just a spurious attempt to have a consultation.
Q14 Steve Brine: Can I check something? I presume that, rather critically, your register has people with specific specialisms in different areas-law, for instance-which is not necessarily the case with the interpreters who have been placed in court settings under the new contract?
Ted Sangster: Yes. There are three prime areas of specialism within the register-law, health and local government-in terms of the recognition provided by the DPSI, which is the primary qualification to get on to the register. The register now has free and open access. Anybody wishing to make use of an interpreter can access the register and do a search for somebody in the area with the language and appropriate skills and qualifications that meet their requirements.
Q15 Steve Brine: Is it accessible online to any member of the public?
Ted Sangster: It is.
Q16 Steve Brine: Mr Rosenthal, do you want to add to that?
Nick Rosenthal: You asked what we would like to have seen. We would like to have started, in order to ensure that justice was served at all times, by making absolutely sure that any revision to the existing system made sure that interpreters going into the courts were fully and appropriately qualified, not just somebody who speaks "a bit of the foreign". I speak a bit of the foreign myself, and you would have good reason to be absolutely terrified if I were to interpret for you in a court of law, because it is outside my specialist areas. We would like to have seen something that made sure that existing professional qualifications were recognised and worked with, and something that maintained an independent register of fit and appropriately qualified persons. We accept that there was plenty of scope and potential for some management efficiencies in terms of a centralised booking system, perhaps. Courts are not necessarily the most high-tech environments, and there is certainly scope for some sort of centralised booking system.
We would like to have seen something that recognised the worth and value of fully qualified professional interpreters who were working in a court environment. Several members of the Committee are barristers and solicitors and will know far better than I what those people earn. Under the old system we had these qualified professionals-the interpreters-earning the princely sum of £30 per hour, which has now been heavily reduced. I am not saying that we were looking for £100 per hour for all interpreters, but we certainly were not looking for the rate to go down, because we knew that the effect of that would be that experienced professionals would quite simply leave the profession, go elsewhere and do something where, using their skill set, they can indeed earn £30 an hour. Those are the things we were looking for. I could wander off into realms that-
Q17 Steve Brine: No, let us give Madeleine Lee a chance to come in here.
Madeleine Lee: I do not have a great deal to add to what Nick and Ted have already said, except that the outcome should have been a register that truly was for the public services, was used by the public services and was supported by the public services, because all the work that has been done by professional institutions over the last three decades in this field has been largely materially unsupported by Government. However, I would like to add that, had proper notice been taken of what the profession was saying right from the word go, you would not have ended up with a situation whereby, first, a procurement department did not actually understand the complexities of the niche markets from which it wanted to commission services, and consequently, a decision on a procurement level has meant that, effectively, the standards of qualifications required for interpreters used in the courts have been watered down. That was not a decision that the procurement department was qualified to take, and it is impacting on justice policy now.
Q18 Steve Brine: Why were the discussions that took place with the MoJ before and during the process not very constructive? In other words-let me be brutal about this-why was there such a failure of influence on your part?
Nick Rosenthal: Can I answer that?
Steve Brine: Let Ms Lee start.
Madeleine Lee: There are two points of view. If I can speak for interpreters, you can speak from the organisations’ point of view. I do not believe there was a failure on our part to communicate in any way whatsoever.
Q19 Steve Brine: With respect, you are sitting here and telling us that it has gone wrong-it is an "I told you so" message-and that it would have been very different if you had been involved. That suggests to me that you did not have much influence.
Madeleine Lee: Not only did we tell them so, but we continue to tell them so. Under the current contract, we are carrying out the Ministry of Justice’s due diligence for it. Interpreters are the only people who are monitoring what is actually happening on the ground with the delivery of this contract. I am sorry, but I cannot agree with you that professional organisations in some way did not carry enough clout to be listened to. Clearly, an early decision was taken by the people who we were contacting, who were different people over the years; we never quite knew who we were supposed to be talking to. We have sent hundreds of letters. There were also unprecedented petitions from freelancers who had signed up individually, saying, "I do not support this framework agreement, I will not support this framework agreement and, if this framework agreement goes ahead, I will not give my services to it."
First, the Ministry was warned from about 2009 onwards. It chose to disregard those views. We continued to warn it in the run-up to the contract going live that it was not going to work, and it did not take us seriously. It thought that, by sending the contract live in January, it could bully us into coming into line and on board with something that we fundamentally disagree with, not just because the rate of pay is low but because the professional standards in our field are effectively being razed to the ground by a commercial agency that has no stake in standards and regulation. Since the inception of the framework agreement, we have continued to write to the Ministry of Justice. We have sent it evidence of what practices are going on and things that have been communicated in the National Audit Office report.
Chair: I think we are rather moving on from Mr Brine’s question.
Q20 Steve Brine: It is great; I love to stir it up. That was a good response. So, Mr Rosenthal, it was not so much a failure of influence-there were hundreds of letters and e-mails and, no doubt, meetings-
Madeleine Lee: There was a failure to listen.
Nick Rosenthal: A failure to listen.
Q21 Steve Brine: You are saying, then, that a decision had been taken, minds had been made up and, no matter what process went on, you were just window dressing.
Nick Rosenthal: I cannot read the minds of the MoJ, but there is every sign that all consultation with the profession was what one colleague has referred to as "nonsultation". We had serious concerns over a length of time and had written to various different people at the Ministry of Justice-to Richard Mason, to Louisa Carrad and to Martin Jones-and often we did not receive the courtesy of a reply. We do not know who to write to at the Ministry of Justice. I represent an institute with 3,000 members. We are probably one of the largest organisations. You would think that, if it was seriously engaging with the profession, it would be talking with us. We became very concerned in the summer of 2011. Interpreters and translators are fairly shy, retiring, slightly conservative individuals by nature. We took a decision as a professional body that it was right for us to come out to bat for the profession, and we wrote to the Prime Minister and several other Government Ministers in September 2011; you have a copy of this letter in the submission from ITI. We did receive replies from Government Ministers. It is because we were concerned by the failure to listen at civil service level that we felt it appropriate to raise the issue with those MPs who were responsible for overseeing it, just to voice our concerns, because they might not be aware of some of the issues that were going on.
Q22 Steve Brine: We will give Mr Sangster a chance to conclude.
Ted Sangster: I came new to the interpreting profession when I was appointed to the National Register in April last year. During my career I have dealt with many different Government Departments but never before the Ministry of Justice. I have been absolutely amazed and dismayed by the way in which the Ministry of Justice seeks to deal with its stakeholders. It is completely against my experience with all the other Government Departments I have dealt with. Just to add to the tale of woes, we have written twice to Martin Jones, for example, and have not had an acknowledgment. We have written twice to Kenneth Clarke, with no acknowledgment. I got my MP, Stephen Crabb, to go and see Kenneth Clarke to ask whether we could at least get a response, but nothing has happened. That strikes me as showing that minds in the Ministry are set, that they are not prepared to listen, that they are arrogant or incompetent, and that they treat their stakeholders with disdain. That is not a way in which to seek to make and bring about successfully the massive changes they are seeking to make. They need people to understand, to be engaged, to be involved and to be on side. A register is part of the changes they are making. I would have thought that the National Register would have been one of the first bodies that they would have sought to engage, to get it involved in some way in the changes they wish to make. I am disappointed.
Steve Brine: Let us leave it there.
Chair: We are anxious to use some of the time that we have with you to look at where we go from here. Ms Qureshi has a question.
Q23 Yasmin Qureshi: Good morning. I want to talk about the framework agreement. As we understand it, not many of the interpreters are engaging and working with it; I think that only about 20% are working with ALS. Is there anything about the framework agreement that is salvageable, or is it completely unsalvageable, in your opinion?
Madeleine Lee: We have already said a great deal about the standards and how they were changed by a commercial decision. It may interest you to know-you may not have picked up on it in your reading of the National Audit Office report-that during the tendering process ALS engaged the services of an independent consultant, who in his day job is employed at Middlesex University. The expert report that he produced said that he had profound reservations about the three-tier system and about the assessment. When Applied Language Solutions reported that information back to the Ministry of Justice in its official tender submission, those views had been changed to the exact opposite; it reported them as "our consultant has approved this in both content and structure". That is clearly misleading.
Q24 Chair: If you would like to let us have a note on that very specific point, which is of some factual importance, we would be rather glad to have it. That may free you to deal with Ms Qureshi’s question about whether the present structure is unsalvageable.
Madeleine Lee: I was just coming to that. The present structure is founded on something that had already been rejected by the consultant who was consulted in the early stages of the tender. It should never even have made it on to the table. It is simply not appropriate to lower the standards when we have had 20 years of policy development in this area.
<?oasys [pc10p0] ?>Nick Rosenthal: In our professional view, as a professional body, the framework agreement as it stands is unsalvageable. I think it contains many false premises. The bottom line is that, under this framework agreement, existing professional qualifications have been ignored. The rates of pay that are offered under it are so low that qualified professionals are no longer able or willing to continue working in the court system. There are so many different concerns about it that we must recognise that the framework agreement as it stands is part of the problem and must be replaced by something better.
Madeleine Lee: May I add something else? Fundamentally, one big reason why this framework agreement is flawed is that it has given the provider all sorts of different functions that should be exercised independently. Each one of these functions is in conflict with the others. Currently, Applied Language Solutions is carrying out the disciplinary function. At the same time it is a work provider, so it has a relationship with the people it disciplines. Obviously, it is also a supplier to criminal justice bodies. It is now a setter of standards within our profession, which is entirely inappropriate. It is a de facto regulator, in that it is supposedly assessing qualifications and competence and deciding who goes on its register. It is also its own auditor, because it is reporting its own performance figures on this contract. A lot of those functions, particularly the disciplinary function and the regulatory function, should be exercised independently, by independent bodies.
Q25 Yasmin Qureshi: Mr Sangster, do you want to add anything before I come on to my next question?
Ted Sangster: I totally reinforce that. The existing situation with the framework agreement is unsalvageable. It is dangerous, if you like, in terms of the interests of public safety, if it is allowed to carry on. It is not delivering to the standards of quality. The profession is dwindling away because the rates of pay are a nonsense; no highly qualified interpreter is going to engage, as has been demonstrated. There are internal inefficiencies as well. It is down to the MoJ to deal with those with its contractor. However, the basic framework itself is significantly flawed.
Q26 Yasmin Qureshi: In that case, I come on to my next question. From what you have said, it is not so much the provider that is at issue: the framework agreement itself is the problem.
Madeleine Lee: It is the fact that all the functions, some of which are not functions for a commercial agency, have been entrusted to the commercial agency, as has the quality control on this contract. We do not believe it is equipped to carry out that quality control.
Q27 Yasmin Qureshi: So you would say that the company providing the service is also not very competent or did not do the job properly.
Madeleine Lee: As you know, Applied Language Solutions is the small Huddersfield-based company1 that tendered for and won the contract. It was awarded the contract in August last year. In December last year, Applied Language Solutions was snapped up by Capita plc. Now, nearly a year later, Capita plc has dispensed with the senior management team of Applied Language Solutions; it has also recently gone through a name change. I do not know whether the fact that there are two ongoing inquiries into the company is related to that name change, but Capita Translation and Interpreting is the new trading name of ALS. It is difficult for us, looking in from the outside, to know how much of ALS’s in-house expertise-if it ever had any-has been taken over by Capita. Capita certainly does not have a background in language services.
Q28 Chair: It is very helpful to us to distinguish between two quite different problems. One is the quality of the contractor that has been provided. The other is whether there is a structure that satisfies your concerns about the maintenance of professional standards, for example, which, you are arguing, should exist independently of the contractor.
Madeleine Lee: Yes.
Nick Rosenthal: We would very much support that view. There are substantial problems with the assumptions on which the framework agreement is based, but a lot of concern has also been voiced by practitioners about the company and how it delivers. In looking at paperwork around this contract, it appears that, during the tender phase, ALS claimed it could make savings of roughly one third, based on management efficiencies. Given that actually it has simply used a cudgel to knock down rates of pay within a monopoly situation that it has been handed from £30 an hour to £20 an hour, I would gently suggest that it has achieved savings of one third by sledgehammering its suppliers.
Q29 Yasmin Qureshi: In the light of what you are saying, it would not be sufficient for Capita Translation and Interpreting to increase the payment rate for interpreters, in your opinion, because of the way it operates and things are done. I can see everybody indicating that that is right. What can Capita Translation and Interpreting do to satisfy you that it is offering a proper service to the court system?
Ted Sangster: I do not think it is down to Capita. It is down to the MoJ, because the existing framework agreement is unworkable, in our view. It needs to be revisited and stripped apart. As for the elements that are appropriate to be dealt with and managed by a commercial body, such as those that Madeleine has outlined, fine-put those together. However, there needs to be independence in terms of qualifications and discipline. Systems need to be put in place so that those are managed appropriately, to provide the monitoring and ensure that the standards required are delivered.
Q30 Mr Buckland: Before I begin, I should declare that I am a Crown court recorder. I want to look at some of the detail on performance under the framework agreement since the beginning of the year. We now have some figures from the MoJ itself that demonstrate that on what I regard as two key indicators-performance and attendance-there are some matters of concern. First, the rate of complaints about requests has been as high as 23% in one month-March. Can I deal with attendance and ineffective trials? The evidence this year shows that the trend for ineffective trials as a result of non-attendance is rising. I know that representatives of your professional bodies have been going to court and monitoring some of these indicators. I wonder what evidence you have as a result of your attendance. Mr Rosenthal, I am happy to start with you.
Nick Rosenthal: Can I ask a small question back? You say you have the figures from the MoJ itself; I would like to offer congratulations on achieving that, because it is more than we have been able to achieve. Are the figures actually from the MoJ itself, or are they figures that the MoJ has asked its own contractor for?
Q31 Mr Buckland: Let me be fair. I have them, first, with regard to ineffective trials. They are quarterly court statistics published by the MoJ, the latest of which relate to quarter 2 and were published on 17 October. With regard to complaints, as I understand it, they are statistics from the MoJ that have been provided to the Committee in recent days. I am grateful to the Committee Clerk for that information. It is information that has been freshly obtained.
Chair: We understand it has been published.
Mr Buckland: It has been published, but only in very recent days. I am sure everybody is to be forgiven if we have not had immediate sight of them.
Madeleine Lee: I have.
Q32 Mr Buckland: Good. The question I had was about the work your professional bodies have been doing to monitor performance and attendance. Do you have that information for us?
Madeleine Lee: It is not something that professional bodies, in particular, have been doing. It is something that out of work court interpreters have been doing by way of continuous professional development or, indeed, carrying out the Ministry’s due diligence for it. These new figures on ineffective magistrates court trials, in particular, show that Capita managed to clock up 182 in the first quarter. Let us bear in mind that Capita operated during only two months of that quarter, because the contract did not start until the end of January. The way those figures have shot up is quite impressive; you can probably see visually that they have gone up significantly since Capita took over.
I go back to the figures provided by the Ministry of Justice, which need to be taken with a large pinch of salt. As the National Audit Office report has already established, there is a large anomaly to do with the category of customer cancellations-when, in practice, Applied Language Solutions sends somebody to a court far too late for them to be of use, or sends somebody with the wrong language, or the person goes to the wrong place, turns out to have a criminal record, or is turned away for whatever reason. Applied Language Solutions will log those instances as "customer requirement cancelled". In other words, if a court rings and says, "Where’s the interpreter you promised me at 9 am? It’s now 4 pm," ALS will say, "Oh, are you cancelling the requirement?", and that goes down in that column. So there is a very large anomaly.
Q33 Mr Buckland: Let me be clear-you are saying that, in effect, complaints and material failures are being logged as cancellations.
Madeleine Lee: Yes. That was established by the NAO report.
There are three further points I would like to make about the presentation of the performance figures. First, they only tell you something about attendance. They do not tell you a great deal about quality, probably because it is a truism that not everybody will be in a position to judge whether an interpreter is competent. If you do not speak both languages, it is very difficult to make a judgment about that. That is why you need to minimise your risk by using only registered professional people in the first place. What we do not know-these are the figures that we are not getting from the Ministry and have repeatedly asked for-is what percentage of the total bookings and requirements for the Courts Service ALS is handling. We know it is not handling 100% of the requirements, because direct bookings are coming to our members, and courts are ringing interpreters directly. Secondly, we know that they are not fulfilling the Crown Prosecution Service contract, for example. That has not yet gone live nationwide, because the company simply cannot cope with the demand. When you are looking at those figures, it is very important to establish what they are a percentage of. If they are only a percentage of 60%, clearly the performance is a lot lower than before.
Could I say a little bit more on the subject of the complaints procedure? As Ted has already explained, the professional institutes have codes of ethics and disciplinary frameworks and procedures in place. Those disciplinary frameworks include an appeals procedure. The full framework and procedure is published; it is transparent, and all parties know what to expect. Moreover, anybody is in a position to make a complaint to those professional bodies. With the new regime, under Applied Language Solutions/Capita, as far as we are aware and have been able to ascertain, there is no facility for anybody who is not a court employee to put in a complaint. The only channel for complaints is through the online portal. The only people who have access to that online portal are court listings clerks and court clerks. Solicitors, barristers, defendants, witnesses, the witness care service-you name it-and the general public are not able to submit complaints. The Professional Interpreters’ Alliance has put in one complaint to Capita that listed 320 incidents that we felt needed looking into. They have not been dealt with. We had an acknowledgment; that was all. We were told to go away, because we are not a party to this contract.
Q34 Mr Buckland: Is it the position that, because of the shortcomings and particular limitations you mentioned, claims that performance is improving are impossible to substantiate?
Madeleine Lee: Absolutely. A lot of claims by the company have been taken at face value, and they should have been checked.
Q35 Mr Buckland: I think you have already touched on the point about ALS not covering the entire gamut of work in the courts, but how frequently are members of your professional associations being asked to find substitutes for ALS interpreters who fail to attend or are not up to the job?
Madeleine Lee: More frequently than should be happening, if this framework were operating properly. We are now on day 266, I think, of the framework agreement, and consequently, day 266 of interpreters individually deciding whether they will boycott Applied Language Solutions or work for them. There is also the separate decision of how they feel about direct bookings when the courts ring them as a second choice and ask them to come and clear up a mess that an ALS linguist has made. Individual freelancers occupy a spectrum, if you like, as to whether they will or will not come out for direct bookings. I could give you a figure for how many calls have been logged by Professional Interpreters’ Alliance members and other professionals since the inception of the contract, but I am not sure it is particularly meaningful. I believe as well that, if direct calls to interpreters are now diminishing, it is because those interpreters are known for having said no over the last eight months.
Q36 Mr Buckland: I see; I just wanted to double-check. Obviously, Capita took over a couple of months ago. Has there been any diminution since it took over, or is it difficult to plot?
Madeleine Lee: There has been absolutely no difference. One thing I would like to note about these direct calls is that they are often from courts at the other end of the country. I, for example, live in East Yorkshire. I am regularly called by Ipswich Crown court because ALS has let it down and it would like me to travel from Hull to Ipswich-and the court would be perfectly happy to reimburse me under the old National Agreement rates to do so. I turn down those jobs on principle. If you analyse the penalty payments that have been imposed on Capita and divide that by the number of failed jobs-I think you ought to look into this in terms of the numbers-you come to a rate of £2.75 by which it is being penalised each time it fails to send somebody. If you bear in mind that, obviously, it is also losing the proportion of the linguist’s pay that it would be top-slicing if it had sent somebody, it makes a loss of maybe £15 each time it fails to provide for a job. If you weigh that up against its other option-to send somebody, say, from Liverpool to Ipswich, and pay their travel expenses-you can see why sometimes Capita may find it easier to take a £15 penalty on the chin and deliberately not supply somebody, because the only other option would cost them a lot of money. It is really something that should be looked into.
Q37 Mr Buckland: Capita has given us information that in August this year 34% of interpreters were attending work requests within a 25-mile radius. The key performance indicator under the framework agreement is 95%, I think.
Madeleine Lee: I think it is 98%.
Q38 Mr Buckland: Do you have any comment on that disparity?
Madeleine Lee: My comment would be that it is an absolute nonsense to expect to have all languages provided for within 25 miles of every police station, every court and every location in the country. There is such a thing as supply and demand. There is also such a thing as over-saturation of a particular market. There were never any problems in servicing the criminal justice sector when we had 2,500 registered interpreters doing it, through the National Register. We do not know where this perceived need to have every language catered for on the doorstep of every court and every police station came from. It is another one of the fantasies that ALS sold to the Ministry in the course of the tendering.
Nick Rosenthal: Or the Ministry itself used a false premise.
Madeleine Lee: It did not understand.
Nick Rosenthal: Even in the core languages, there are wide parts of the UK where there is no qualified interpreter living within 25 miles of a police station. I will use Truro as an example. When you get on to some of the rarer languages, there are not a huge number of interpreters. I believe Thai is an example.
Madeleine Lee: Twi.
Nick Rosenthal: For some languages, quite plainly, logic itself says that there may be three or four qualified interpreters in the country and they may need to travel to where the trials are, just as judges and barristers travel to where the trials are, in some instances.
Madeleine Lee: There also needs to be enough work to go round for professional interpreters to remain professional and for it to be attractive for them to stay active in this field and to continue to work in this field. We have to be able to make a living. If you over-saturate the market with a large number of unqualified people who are available within a 25-mile radius, that is not doing anybody any favours. It is certainly not serving justice.
Chair: Thank you very much. We need to move on to hear from court users. Otherwise, I am sure we could spend a lot more time going through some of these details. If there is anything you feel that we missed in the questioning that you wanted to draw to our attention, do not hesitate to drop us a line after this session.
Examination of Witnesses
Witnesses: John Fassenfelt, Chairman, Magistrates’ Association, and Richard Atkinson, Chair, Criminal Law Committee, Law Society, gave evidence.
Chair: Welcome, Mr Fassenfelt, the chair of the Magistrates’ Association. I think it is your first session before us; we are very glad to have you. Mr Atkinson, you chair the Criminal Law Committee of the Law Society; we welcome you also. I think Mr Fassenfelt heard some of the preceding evidence, but obviously it is your experience of the language situation in court we want to find out about. I ask Mr Brine to open the questions.
Q39 Steve Brine: Good morning. Thank you for coming. What was your impression of the previous arrangements for interpreting and translation services in the justice sector?
John Fassenfelt: As far as the Magistrates’ Association is concerned, the pressure to change did not come from us. We felt we had a reasonable service as far as translation is concerned. As the Committee will understand, translators are officers of the court. They are extremely important to the court, and we must have trust and confidence in those translators. There were some concerns about the service that we were being given before the changes, but those concerns focused on monitoring. As you will understand, as a magistrate, I am no linguist. You also rely on the interpreter’s skill, experience and knowledge, and I am not in a position to check that in any great detail. I would say that there was not pressure from the magistracy to change the system. Obviously, I cannot comment on the cost angle.
Q40 Steve Brine: Okay, the pressure did not come from you. Mr Atkinson, would you care to comment on what went before?
Richard Atkinson: From a practitioner perspective, what went before seemed to work very smoothly. There did not appear to be difficulties in obtaining interpreters. The only time that there were difficulties was on the odd occasion when the police, who were responsible for booking an interpreter for a first hearing, had some breakdown in communication and one was not obtained. Usually, one would be found in the course of the morning in a magistrates court, if necessary. In my experience, difficulties in relation to interpreters not turning up were unheard of before the change.
Q41 Steve Brine: Let me jump back to Mr Fassenfelt. As a magistrate, can you recall any problems under the previous system where court proceedings were adjourned, collapsed or were made ineffective due to problems with the appropriately qualified interpreters not being in the right place at the right time?
John Fassenfelt: With any system, it will always happen that interpreters do not turn up, but I understand that this percentage was very small. We are talking about low single figures.
Q42 Steve Brine: That is interesting. Some of your members thought the service for provision of interpreters had improved under the new arrangements. Can you tell the Committee about any specific improvements that they mention?
John Fassenfelt: The Committee should recognise that that was a low minority of our members-in the order of 10%. They felt that the system was more flexible now and that a greater range of languages was available. It was a nationally based system, rather than a locally based system, which did perhaps add some difficulties. Some 10% of those who responded felt that it worked well. Of course, we have to recognise that 90% felt it did not work well.
Q43 Steve Brine: Finally, Mr Atkinson, have members of the Law Society noted any improvements under the new system that you would care to share with us?
Richard Atkinson: As opposed to the old system?
Steve Brine: Yes.
Richard Atkinson: No, not that I am aware of. I am not aware of anyone saying that they have noticed any improvements on the old system. As I said, no one reported to me difficulties in the past in relation to the old system. Generally, interpreters were available on the day and in the place where they were required. There were sometimes difficulties in obtaining a sufficient number of interpreters, particularly at the police station, with what we describe as multi-handed cases, in which a number of defendants were being interviewed, with, possibly, witnesses who spoke the same language being interviewed at the same time, so the same interpreters could not be used. You might have a high demand in one particular case for one particular language. It would not be unknown for six interpreters to be involved with the same language. In those circumstances, under the old system, there were delays, but I am afraid they have become worse, not better, under the new.
Q44 Steve Brine: You both seem rather bemused that we are in this position and that, because of the demand for this change, we have ended up in the position of having an inquiry, here in the House of Commons Justice Committee, into interpreting services? Is that fair comment, Mr Fassenfelt?
John Fassenfelt: Yes. From my magistrate’s viewpoint, we are concerned only with the service that comes before us. We are concerned not with the cost of that service but with the level of service that we get. Yes, we are bemused as to why it was changed.
Q45 Steve Brine: Mr Atkinson, do you have anything to add?
Richard Atkinson: No, nothing.
Q46 Yasmin Qureshi: Good morning. Can I ask a question following on from what my colleague was asking about? To what extent have cases been unable to proceed owing to the lack of an interpreter, or an under-qualified interpreter, since February 2012-that is to say, in the last six months or so?
John Fassenfelt: Our members have specifically identified a number of areas, which I mentioned in my submission. I suppose the two areas that are extremely important are when an individual is remanded in custody without an interpreter being available and, when a trial is to go ahead, an interpreter does not turn up and the trial collapses. Obviously, that inconveniences witnesses and, if the defendant is remanded in custody, puts the defendant back into custody. I would say those are the two main areas.
Richard Atkinson: I am not sure whether you are asking, on an empirical basis, for an answer to the question, "How much?" The answer to that question is, "I don’t know." We have not collected data on that point, so I could not assist. Certainly, the concerns that Mr Fassenfelt has expressed are shared. I will give two quick examples. At the end of September, there was a case in Leicester that had been fixed for seven months in the Crown court. It was due to last four weeks. On the first day of the trial, neither of the two Albanian interpreters was in attendance and the trial had to be put off for a day. As I am sure you are more than aware, Crown court trials are very expensive-and that was a whole day wasted.
Another example that I have been given is of a defendant with no previous convictions being remanded on three consecutive occasions for lack of an interpreter. In the end, the magistrates somewhat gave up-if I can put it that way-and granted unconditional bail, because they did not think he could understand any of the conditions, and remanded him to a magistrates court 50 miles away, where they would have access to an interpreter so that they could make progress with the case. That was a man who had never previously been before the courts, who spent three nights in custody for lack of interpreters. That is a real concern. But, on an empirical basis, I cannot assist with defining the breadth of the problem.
Q47 Yasmin Qureshi: I was not expecting empirical evidence from you; it is a question of what you see happening in court on a regular basis. Both of you have said that the problem seems to have been interpreters not turning up. My next question is about the competence of the interpreters who do turn up. In your opinion, has there been a fall in the quality of interpreters? You may well say that you are not an expert in the languages and may not be aware of whether somebody is translating things properly, but one of the concerns that some Members of the Committee have is that, even under the old system-and probably under the new system too-there are times when interpreters are not doing their jobs properly. I can remember this because, before becoming a Member of Parliament, I was a practitioner. I sat through a number of trials where, because I understand a number of south Asian languages, I was uncomfortable with the level of interpretation going on. On a few occasions, I even told the court, and we had to abandon the cases. I suppose problems of that sort can arise anywhere. Has there been any improvement in the quality of interpretation, or is it still the same?
John Fassenfelt: The level of comments by magistrates must be indicative of the standard. While the level of comments by magistrates is diminishing, it was certainly at an extremely high level earlier this year. My personal experience is interesting. As the judiciary, we have to accept some responsibility. We may not be able to understand the language that is being interpreted, but we can look for signs. I shall not go into details, for obvious reasons, but I had an example recently involving a Russian interpreter. The defendant said something, but the interpreter did not interpret it. In my view, that should ring a bell straight away with the chairman of the court. This person’s job was to interpret; it was not to say, as she said in English, "That’s not important." I chose to ask her what the individual said. The piece of information given to the court was substantial and did affect the sentence. I can give you that practical example of my experience in court-and I sit very regularly-and also the experience of my colleagues in other courts. However, it is anecdotal.
Q48 Yasmin Qureshi: Can I follow on from that? Capita-or ALS-is operating a tiered system for booking provision of interpreters. Do you see interpreters who are not professionally qualified legitimately fulfilling any role in the criminal justice context?
Richard Atkinson: No. I will qualify that. It is very difficult to anticipate properly what is going to happen in a courtroom. You can make a good guess that, most of the time, this is what will happen, but frequently that changes. You can go along for what might be considered a routine procedural hearing and find that the prosecution say, "We have evidence that your client has breached his bail conditions, we want to bring that to the attention of the court, and we will be seeking a remand in custody", or "Additional information has come to light that makes this case more serious. We’ve reviewed the evidence, and we’re changing the charges", and/or, "We want to review his bail." Those are technical issues that need proper translation to the defendant. Sometimes technical aspects of the evidence are mentioned at hearings that are not the trial. It is very important that the client understands exactly what is going on. I do not think you can adequately and safely-I emphasise the word "safely"-try to distinguish in advance at what level the interpreter should be. They should be fully qualified and able to do the job in all circumstances.
John Fassenfelt: I fully support everything Mr Atkinson has said on that. I would add one further point of concern to the magistracy, which is that there is no independent monitoring of the interpretation service. I rely on the skills, experience and qualifications of the individual, but I would feel much safer and happier if there were independent monitoring of the skills. I am not saying that every interpretation should be monitored, but there must be a system of independent monitoring.
Q49 Yasmin Qureshi: Can I go on to the issue of transitional arrangements? The question is specifically for you, Mr Fassenfelt. As we know, the Ministry of Justice and Capita have been operating a pilot for short-notice work in 19 magistrates courts. Have you had any feedback from any of the courts involved regarding that pilot?
John Fassenfelt: The straight answer to that is no. There has been no feedback at all. All I will say is that when the local system was introduced, magistrates were pleased that an alternative system was available to them.
Q50 Yasmin Qureshi: You may be aware that in July this year Capita replaced the senior management team at ALS, which originally got the contract. Do you see any improvement, or have any of your members noted any improvement, in the interpreting and translation services in the last few months?
John Fassenfelt: The number of comments that we receive in the association has certainly gone down. But I am not sure whether that is an impact of Capita introducing a different management team, whether the Ministry of Justice has got a better hold on the contract, or whether magistrates have just got fed up with moaning about it. I would like to feel that the Ministry of Justice has got a better hold on the contract.
Q51 Yasmin Qureshi: I have a little final question. Are you aware of the extent to which the courts are using the old arrangements for getting interpreters into court?
John Fassenfelt: No, I am not in a position to give you any figures on that. It is just that, when magistrates have commented to me about it, they have been pleased that we have a local system that works.
Q52 Mr Buckland: I turn to the complaints process for legal professions. It is really a question to Mr Atkinson. Do you believe that there needs to be a proper complaints process for legal professions to register any complaints or concerns about problems with interpreters supplied by ALS?
Richard Atkinson: Yes, I think that would be very helpful. It would give some evidence base and alleviate some of the difficulties that we have experienced in giving our evidence, which has been primarily anecdotally based. We would then have a proper basis for looking at and analysing the problems, including the problems for those providing the service. It would allow us to look at whether there are geographical differences in the problems and at the numbers. If there were somewhere that lawyers could complain to, whose specific function was to receive those complaints, it would encourage them to believe that there was a reason to make a complaint, with the hope that that would lead to some improvement. If there were a direct service for them to report to, I think it would also lead to a higher level of reporting of problems.
Q53 Mr Buckland: I am glad you have focused on the need for hard evidence. I wonder whether you can help us in your representative capacity. I do not know whether you or the Law Society have conducted any estimates of the average costs that are incurred when cases are adjourned either because of a failure by an interpreter to come up to the mark or because of non-attendance.
Richard Atkinson: No, I am afraid to say that we have not. It would be very difficult, in any event, because you are looking at such a wide range of matters. If you are talking about all hearings, you would need a lot more analysis, because a Crown court trial-as I described with the example in Leicester-would be extremely expensive and measured in the thousands of pounds, if not more. If you are talking about a brief magistrates’ adjournment of a remand hearing, it might be a very small amount of money indeed-and difficult to measure, as fixed fees are paid to practitioners. It would be quite a task to be able to measure it. It would need to be broken down and looked at in some detail.
Q54 Mr Buckland: Again, this may be a difficult question to answer. Obviously, there are concerns about potential miscarriages of justice, breach of article 6 and everything that flows from that. Are you able to help us to determine whether a body of evidence is being gathered on whether some of the failures are now affecting that fundamental right?
Richard Atkinson: No, because it is very difficult to look at how such a scenario would arise. I think you are focusing on the trial?
Mr Buckland: Yes-the trial process.
Richard Atkinson: Indeed. So the trial will have taken place and been completed, and then someone will have seen that something went wrong with it, which is very difficult and does not happen frequently. One hopes that many do not slip through the net, but clearly it is possible. Obviously, those that are pulled up and stopped before they get to that point do not result in what you are suggesting is a miscarriage of justice. What happens is that cases are stopped or restarted. More particularly, fair trial provision within European jurisprudence looks at the whole duration, from beginning to end. If one is looking not at the total outcome but at each of those processes, clearly it is impacting. People are being remanded in custody. Perhaps the greatest indictment of the present failures is that people are spending time in custody for no reason other than the lack of an interpreter. Although that would not come into the category of someone being denied a fair trial at the end of the day, when looking at the trial process, I would be very happy to say they had been denied a fair trial process.
Q55 Mr Buckland: We all have a right to bail, don’t we?
Richard Atkinson: Indeed.
John Fassenfelt: There is another aspect that I mentioned earlier-the aspect of trust and a feeling of confidence in the interpreter. If that starts to leak away, as officers of the court, we will have serious concerns in the future about interpreting services. I think it must influence your reactions in court.
Q56 Chair: A suggestion was made in the preceding evidence session that, in cases where the court did not have the interpreter in front of it, got in touch with ALS to ask what had happened to the interpreter and was told, "He’s very late, and won’t get there until tomorrow", or something, that was recorded as customer cancellation. I do not know whether the Magistrates’ Association would be aware of whether that was being done-in other words, that actual failures by the company were being recorded as cancellations by you, the courts.
John Fassenfelt: As I said earlier, the magistracy, as a judicial post holder, has a responsibility to ensure that the complaint-which, as was mentioned earlier, goes through the justices’ clerk-is properly registered. I think we have a responsibility to instruct the justices’ clerk, the legal adviser, that the complaint is made in a proper context. We have a responsibility to sharpen up that side of the business. Having heard what has been said today, I will ensure that guidance is issued to our members on that particular aspect.
Q57 Chair: On a wider point, is it your view that this system and this contract, which has some years to run, are improvable or salvageable? Our previous witnesses took a different view-that, really, we have to start from scratch and build a different kind of system. Are there things that could be done within the framework of the contract that would meet the sort of concerns that you have?
Richard Atkinson: It is very difficult for us as end users, if I may use that phrase, to be able to comment effectively on that. We can see the consequences of the new contract. We are aware anecdotally of what some of the causes of the problems are. For example, interpreters are saying that they will not travel long distances because of the rates that they are paid for travel. Others are saying that the rates being paid for the job itself are no longer sufficient to induce them to undertake the work. However, it is very difficult from the outside to say whether or not that is redeemable. Clearly, it is very much linked to the funding. I think it depends on how much flexibility there is in relation to that.
John Fassenfelt: I agree with Mr Atkinson. It is difficult for us as end users, particularly because, basically, we have no knowledge of the contract. The only knowledge we have is what comes in front of us, and that is not as good as it was. We would urge and have been urging, the Ministry of Justice to look at the issues-the complaints issue, all the issues that have been mentioned by other people, and the monitoring side-in order to improve the service to the court, bearing in mind that it is a service to the court.
Q58 Chair: Do you have a view on the idea that the process of certifying and registering should be independent from the provision of service under the contract?
John Fassenfelt: As an association, we feel that for magistrates to gain that trust and confidence there needs to be some form of divide between the two. I always liken it to the relationship between the contractor and the contract side. There needs to be independent monitoring of the contract. I do not see that happening now. I see the provider-the contractor-doing the monitoring. To me, that does not give the confidence that we need as a magistracy.
Chair: I thank both of you for your evidence. We are very grateful to you. That ends our proceedings this morning.
 Note by witness: ALS Ltd was originally based in Huddersfield but since moved to premises at Huddersfield Road in Oldham .