1 Introduction
Background to the Committee's
inquiry
1. Interpreters are used by the Ministry of Justice
and its agencies throughout proceedings in courts and tribunals,
and in prisons and probation. The Law Society suggested that they
are particularly important in the areas of crime and immigration.[1]
In criminal justice, the area in which we received most evidence,
they are used for non-English speaking victims, witnesses and
defendants. They are used at all stages in the process during:
arrest, interview and charge; official prison visits; solicitors
taking instructions; court hearings; trials; sentencing; the creation
of probation reports; and post-trial proceedings, such as those
related to proceeds of crime. Interpreter services cover a variety
of different services including face-to-face and telephone interpreting,
written translation, and language services for the deaf and deaf/blind.
Interpreting means converting spoken language to another language,
or in the case of deaf or deafened people, sign language to spoken
language and vice versa. Translation means converting a written
text in one language to another written language.[2]
2. The reliance on interpreters in cases involving
non-English speaking parties, defendants, victims and witnesses
is considerable. John Fassenfelt, Chair of the Magistrates' Association,
explained their value to magistrates: "[…] translators
are officers of the court. They are extremely important to the
court, and we must have trust and confidence in those translators
[…] [we] also rely on the interpreter's skill, experience
and knowledge".[3]
3. In August 2011, the Ministry of Justice (MoJ)
signed a four year Framework Agreement for language services with
Applied Language Solutions (ALS, now Capita Translation and Interpreting,
(Capita TI)). Under that agreement a 'call-off contract' enables
a range of justice sector bodies to enter into individual contracts
with ALS each time an interpreter or linguist is supplied. ALS
began operating a five year contract with the MoJ under the Framework
Agreement on 30th January 2012. Those bodies already making use
of the services of ALS are Her Majesty's Courts and Tribunals
Service, parts of the Crown Prosecution Service and Her Majesty's
Prison Service.
4. When ALS began implementing the Framework
Agreement it faced immediate operational difficulties including
a lack of registered interpreters, resulting in an inability to
deal with the volume of demand. Where interpreters were available
they were frequently without qualifications or under-qualified.
There was also a lack of transparent or properly functioning processes
for recruitment, vetting and complaints. At that time we received
a significant volume of correspondence from concerned stakeholders.[4]
Following an oral evidence hearing with Peter Handcock, Chief
Executive of HM Courts and Tribunals Service (HMCTS), related
to our Budget and Structure of the Ministry of Justice
inquiry on 6th March 2012, we wrote to Mr Handcock with further
questions. In his response on 31 May he explained steps had been
taken which had led to a "significant improvement in performance"
since the first few weeks of the full implementation of the contract.
He said while HMCTS were still "working through issues",
he was "confident that the Framework Agreement can provide
the service that the justice sector requires and the efficiencies
forecast".[5] Nevertheless,
significant concerns about the operation of the Framework Agreement
continued to be raised with us.
5. In view of these concerns, in July 2012, we
launched an inquiry on the provision of interpreting and translation
services since Applied Language Solutions (ALS) began operating
as the MoJ's sole contractor. Specifically, the inquiry asked
for evidence on the following six areas:
i. The rationale for changing arrangements for
the provision of interpreter services
ii. The nature and appropriateness of the procurement
process
iii. The experience of courts and prisons in
receiving interpreting services that meet their needs
iv. The nature and effectiveness of the complaints
process
v. The steps that have been taken to rectify
under-performance and the extent to which they have been effective
vi. The appropriateness of arrangements for monitoring
the management of the contract, including the quality and cost-effectiveness
of the service delivered.
6. We received written evidence from the Ministry
of Justice, Capita, organisations representing professional interpreters,
individual interpreters—most of whom had chosen not to provide
services on behalf of ALS but a small number of whom had—and
other stakeholders, including the Magistrates Association, Law
Society, and individual barristers and solicitors. We did not
receive written evidence from Gavin Wheeldon—CEO of ALS
at the time the contract was secured—specifically in relation
to this inquiry but we did receive evidence from ALS in our inquiry
on the budget and structure of the Department, noted above.[6]
We also took oral evidence from: Madeleine Lee, Director of the
Professional Interpreters' Alliance; Nick Rosenthal, Chair of
the Institute for Translation and Interpreting; Ted Sangster,
Chair of the National Register of Public Service Interpreters;
John Fassenfelt, Chair of the Magistrates' Association; Richard
Atkinson, Chair of the Criminal Law Committee of the Law Society;
Gavin Wheeldon, former CEO of ALS; Andy Parker, Joint Chief Operating
Officer, and Sunna van Loo, Public Services Director, Capita Ltd;
Peter Handcock CBE, Chief Executive of HMCTS; Ann Beasley, Director
General Finance and Corporate Services, Ministry of Justice; and
Helen Grant MP, Parliamentary Under-Secretary of State for Justice.
INTERFERENCE WITH WITNESSES
7. In the course of our inquiry it was alleged
that HMCTS had actively discouraged its staff from submitting
formal written evidence. As a result, we established a three week
online consultation to invite observations, anonymously if necessary,
from people who had direct experience of the provision of interpreting
and translation services by ALS during the period September and
October 2012. We hoped that this would provide a forum for those
who might have been reticent to provide formal written evidence,
including court and tribunal service staff. The Ministry of Justice
initially refused to provide our secretariat with regional contact
details to enable the consultation to be publicised to HMCTS staff.
It then became apparent that HMCTS had issued an edict instructing
their staff not to participate. We also heard from the chair of
a magistrates' court bench who had been dissuaded by HMCTS from
sending data on the performance of interpreters to support his
evidence.[7]
8. We wrote to the Secretary of State, Chris
Grayling MP, requesting an explanation and Helen Grant MP, Parliamentary
Under-Secretary of State for Justice, who investigated the matter
on his behalf, explained:
"We took this decision as the Department was
already giving its evidence to the Committee in written and oral
form […] The Civil Service Management Code and the Osmotherly
Rules say that officials should not take part in research projects
or surveys designed to establish their personal views on Government
policies. In the second half of October, we became aware of some
interpreters contacting courts directly with the details of the
forum, accompanied by a press release from an interpreters organisation
which disagreed with the MoJ's evidence at the Public Accounts
Committee. In light of these emails, we decided to email HMCTS
Cluster Managers to give them some guidance on how to respond
to these specific emails. […] In my view, this email was
an entirely appropriate response to the contact from interpreter
groups that staff received and did not interfere with the collection
of evidence by the Committee."[8]
The email she referred to stated: "You may be
contacted by interpreters inviting/encouraging you to join a forum
where anecdotal information about this service is being gathered.
As the Department has already provided consolidated evidence to
the Committee you are requested to refrain from participating,
[...]."[9]
9. In respect of alleged interference with testimony
submitted by Mr Beeke, a member of the magistracy, she explained
that, as the respondent had wished to include a copy of a local
spreadsheet of issues with Capita-ALS which was not possible to
verify against ALS' own data on complaints, it would have been
"suggested" to him that such spreadsheets should not
be submitted as evidence.[10]
10. We consider that the
actions of the Ministry in respect both of court staff and of
the magistrate may have constituted a contempt. We find the approach
of the Department on this matter extremely unhelpful, particularly
in the light of the very successful use by this Committee of online
consultation with their staff in previous reports, such as our
reports on the role of the prison officer and the role of the
probation service. The Department has not previously resisted
the use of a process which gives the Committee a broader understanding
of the experience of staff, and which is not in any way designed
to challenge the ultimate responsibility of Ministers for the
policies of the Department.
11. It is not for the Ministry
of Justice to judge whether steps they took in relation to the
inquiry did or did not interfere with our collection of evidence.
That is a matter for us and for the House of Commons. Any act
which obstructs or impedes the House in discharging its functions
may be treated as a contempt of the House.
12. In considering this matter
we have been mindful of the fact that the House exercises its
jurisdiction in cases of contempt sparingly and only when essential
to prevent substantial interference with the performance of its
functions. In this case it appears that our efforts to obtain
a full picture of the current effectiveness of interpreting services
in courts were hampered by the absence of any substantiation from
frontline staff. However we consider that we have sufficient evidence
from other sources to make a reliable judgment. We have relied
on evidence from other important stakeholders, including the Senior
Presiding Judge, the Magistrates' Association, and the Law Society,
along with the testimony of professional interpreters who were
observing court proceedings. We have therefore not asked the House
to take further action on this matter although we gave serious
consideration to doing so. We
expect the Ministry of Justice and its agencies to have proper
regard to the rights of Parliament and those who give evidence
to Committees of the House, and, as our predecessor Committee
demonstrated in 2004, we will not hesitate to refer alleged infringements
to the House when necessary.[11]
THE NAO REPORT AND THE PUBLIC ACCOUNTS
COMMITTEE INQUIRY
13. On 10th September 2012 the National Audit
Office published a memorandum The Ministry of Justice's language
services contract which detailed the results of its investigation
into the Framework Agreement, commissioned in April 2012 by the
Public Accounts Committee. The conclusions and recommendations
are listed in the box below. The Public Accounts Committee held
its own inquiry into the issue and held hearings on 15th
and 29th October 2012. The Committee published its
report on 6th December 2012.[12]
The Public Accounts Committee's recommendations
| The Public Accounts Committee's recommendations
1.The Ministry lacked management information on the previous use of interpreters
and therefore did not have a clear understanding of its requirements under the new
system. The Ministry did not know how much it was spending on interpreters, or how many interpreters it required or in what languages. As a result, the system it selected was driven by bidders' proposals rather than its actual requirements. The Ministry should ensure that it understands the services it needs to procure thoroughly and its cost before commencing future procurement projects.
2. The Ministry did not conduct thorough due diligence checks on Applied Language
Solutions (ALS) before signing the Framework Agreement. For example, it commissioned a credit rating report, which suggested that ALS should not be awarded a contract valued at more than £1million. The Ministry did not act on its findings and although it consulted with stakeholders, including interpreters, it did not take their concerns into consideration. The Ministry should collect all available information on a bid and bidder, and consider the full data set at an appropriate level of seniority, before making final decisions on future contracts.
3. Despite very poor performance, the Ministry only penalised the supplier £2,200 and failed to penalise it at all for the first 4 months, when performance was at its worst. Risible levels of penalties and low expectations of performance allow private companies to get away with over promising and under delivering. The Ministry should draft and implement future contracts so as to minimise transitional problems, for example through piloting and rolling-out new systems gradually and incentivising contractors to meet contractual requirements from the outset; for example, through robust use of the penalties available.
4. The Ministry estimated that it would need access to 1,200 interpreters to meet its
requirements; however, the contract went live when the supplier had only 280 interpreters ready to work under the terms of the contract. The Ministry believed that many more interpreters were available to work, in line with contractual obligations, than was actually the case due to over-optimistic assurances from Capita-ALS and confusion over definitions of what important terms such as 'registered' actually meant. When implementing future contracts, the Ministry should not rely solely on contractors' assurances that they are ready and able to deliver the service but should conduct its own thorough testing and have a detailed transition plan to ensure that the service will be delivered before going live.
5. The Ministry was unable to confirm that all interpreters working under the contract had the required qualifications, experience and enhanced CRB checks. Capita was unable to assess and mark all interpreters as required by the Framework Agreement and could not be certain that all interpreters had the required experience. The Ministry did not have sufficiently robust processes in place to ensure that Capita-ALS had checked and recorded qualifications, evidence of experience and enhanced CRB checks. The Ministry should ensure that Capita-ALS now has procedures in place to guarantee that only interpreters with the correct skills, experience and character work under the contract, including agreeing and putting in place an alternative to the assessment regime. It should test the effectiveness of these procedures through a programme of audits and spot checks on individual interpreters.
6. Capita-ALS is still unable to provide sufficient numbers of interpreters to meet all of the Ministry's language requirements. By October 2012, the Ministry was still using the contingency plans to source some interpreters. The Ministry is responsible for all aspects of the efficient administration of the courts and must work with Capita-ALS to develop a more creative approach to recruiting interpreters across all required languages and geographical locations.
7. The Ministry was unable to provide information on the additional costs to the department of the delaying of trials because of the failure to provide interpreters. There has been an extra cost both to the courts and to prisons caused by the postponement of judicial proceedings. In the future, the Ministry must undertake comprehensive cost and benefit analysis of its new policies.
|
Data source: Public
Accounts Committee, Twenty first Report of Session 2012-13,
The Ministry of Justice's language service contract, HC 620
1 Ev 48 Back
2
Ev w25 [Note: references to 'Ev wXX' are references to written
evidence in the volume of additional written evidence published
on the Committee's website] Back
3
Q 39 Back
4
Not published Back
5
Ev 83 Back
6
Justice Committee, Second Report of Session 2012-13, The budget
and structure of the Ministry of Justice, HC 97-II Back
7
Ev w80 Back
8
Ev 58 Back
9
Ev 59 Back
10
Ev 58 Back
11
In 2004 the Constitutional Affairs Committee referred a matter
to the Standard and Privileges Committee after a CAFCASS board
member, Ms. Judy Weleminsky, was asked by the Lord Chancellor
to resign for failing "to behave in a corporate manner."
This occurred after she had submitted written evidence to the
Constitutional Affairs Committee on her own behalf, much of it
critical of the management of CAFCASS. The Lord Chancellor
subsequently apologised to Ms. Weleminsky. See Standards and Privileges
Committee, Fifth Report of Session 2003-04, Protection of a
Witness, HC 447. Back
12
Public Accounts Committee, Twenty first Report of Session 2012-13,
The Ministry of Justice's language service contract, HC
620 Back
|
