3 The new arrangements |
The procurement process
25. Under the previous Government, in early 2010,
the MoJ joined forces with the Association of Chief Police Officers
and the Crown Prosecution Service to develop a new approach to
language services in the justice system; at an early stage it
was decided that outsourcing the management of such services to
a private company would be considered as an option.
In September 2010, Crispin Blunt MP, Parliamentary Under Secretary
of State for Justice, announced to the House the Government's
decision that interpreting and language services were to be procured
using a "competitive dialogue approach", whereby the
MoJ set objectives and explored with potential providers how they
would meet them over several stages of dialogue, eliminating bidders
at each stage.
MOJ CONSULTATION WITH STAKEHOLDERS
26. The final round of the procurement process
left only ALS in the running for the contract. During this final
stage, when substantive plans were already formed, the MoJ invited
stakeholders to comment.
The consultation, announced in a letter on 30 March 2011, included:
a summary of the plans; proposed quality standards which would
apply to interpreters and translators; a proposed code of conduct;
management information and key performance indicators; and a draft
27. The MoJ received 140 responses from individual
interpreters and their various representative groups, service
users and the judiciary. Concerns included: the company operating
as a regulator and supplier, creating a conflict of interest;
the appropriateness of the tiered structure in relation to existing
standards, and perceived limited scope to use tier 3 interpreters
in the courts; the introduction of assessment centres, which were
seen as costly and unnecessary given existing recognition of appropriate
qualifications and professional registers; the dilution of qualification
requirements, for example, the inclusion of a degree in the target
language; and the implications of the changes for future training
respondents from the interpreter community also suggested that
they would refuse to be re-assessed and that potential changes
to the pay structureon which they were not consulted due
to commercial sensitivitiesmeant that many interpreters
might be unable or unwilling to continue working in the justice
28. The responses reportedly led to some refinements
in the model, including to the qualification requirements.
When we asked the Ministry of Justice for more detail on these
refinements it was clear that they were not extensive: we were
told that there had been additions to the list of interpreter
membership organisations recognised and modifications to the applicable
standards for deaf interpreters.
The various elements of the Framework Agreement and their impact
on the provision of interpreting services to the courts and tribunals
and on the interpreting community, and hence on the problems that
materialised when the Agreement was implemented, are discussed
in more detail later in chapter 5.
Concerns about the procurement
29. Three other themes raised by respondents
to the consultation related to the procurement process itself.
These were: the use of the competitive dialogue process; the consultation
exercise; and the appropriateness of ALS as the MoJ's choice of
THE USE OF THE COMPETITIVE DIALOGUE
30. The Association of Translation Companies
(ATC), a professional organisation representing the interests
of commercial companies offering language services, told us that
a number of its members, including Applied Language Solutions,
were involved in the competitive dialogue process. Some of these
members had informed the Association that they had decided to
withdraw from the process as they viewed the specifications to
have been flawed. 
Another company, Cintra Ltd, was of the view that the tender process
was well designed in its early stages.
The only other bidder that remained in the competition alongside
ALS up to the final stage, thebigword, told us that they felt
there was less clarity and transparency in the process than they
had experienced in similar exercises. For example, the qualification
criteria for each stage were not fully defined from the outset.
CONSULTATION WITH THE INTERPRETER
31. Organisations representing professional interpreters
felt that there was insufficient consultation with them, both
regarding the decision to procure a new model of provision following
the early stages of the review process, and in the development
of the model proposed in the draft Framework Agreement. Had they
been consulted at an earlier stage, interpreters and their professional
organisations say they would have liked to have worked with the
MoJ to address collectively the issues that had been identified,
and the concerns, whether justified or not. They say that they
would like to have worked towards a revision of the existing system,
based on the existing National Agreement, Register and associated
professional qualifications, rather than having a new system imposed
32. In particular, the Professional Interpreters
for Justice Campaigncomprising eight membership organisations,
together representing over 2320 registered and qualified interpreters,
and other non-membership stakeholdersexpressed regret that
the MoJ did not attempt to remedy perceived shortcomings with
NRPSI registration as a mechanism for quality assurance by providing
support or funding to improve the existing system and ensure that
the National Agreement was properly enforced.
For example, the MoJ did not look at outsourcing the functions
of booking and payroll systems while continuing to use approved
lists, including the NRPSI, to provide assessed and vetted interpreters.
Ms Lee felt it was important that any new arrangements built on
"decades of policy development, from the Runciman report
onwards, through the Auld report and the various incarnations
of the National Agreement."
Witnesses believed that such an approach could have resulted in:
stricter implementation of the National Agreement; greater incentive
for interpreters to become properly registered; and the ability
of organisations to share information about disciplinary hearings.
They felt that membership of a professional organisation with
stringent membership requirements would represent a better guarantee
of quality than a new assessment.
33. Partially in response to the concerns, the
National Register, which was previously part of the Chartered
Institute of Linguists, was established as an independent body
in April 2011; the register is now freely accessible online.
Other options earlier proposed by the profession, but rejected
by the MoJ, included regional not-for-profit units and a partnership
approach to working with local language service providers, for
example, by building on existing models of best practice such
as those used by the Metropolitan and Cambridgeshire police with
centralised booking coordinators working with local providers.
Mr Handcock explained that justice sector work represented approximately
10% of a £1bn market; he dismissed the possibility that the
MoJ could itself have set up a centralised system as it would
have required "substantial investment".
34. Some witnesses strongly condemned the Ministry
of Justice's approach to consultation with professional interpreters..
Ms Lee described the MoJ's conduct as a "failure to listen";
she detailed the various ways in which representatives of professional
bodies had sought to communicate to the Department their concerns:
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.
35. Mr Rosenthal stated:
] there is every sign that all consultation
with the profession was what one colleague has referred to as
] 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 [
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
36. Mr Sangster, Chair of the NRPSI, told the
Committee that he had previously dealt with other Government departments
and he was "amazed and dismayed" by the MoJ's behaviour
with respect to his organisation's concerns about the Framework
Agreement and suggested it was either "arrogant or incompetent"
to treat stakeholders with such "disdain".
37. In November 2011, the Minister for the Cabinet
Office, Rt Hon Francis Maude MP, announced a presumption against
the use of the competitive dialogue procedure except where its
use could be justified. Subsequent Cabinet Office guidance states:
The competitive dialogue procedure is designed to
be used for particularly complex contracts. Too often, however,
public procurers have relied on it as a means of engaging in dialogue
with suppliers, instead of engaging in thorough pre-market engagement
to understand the market and supplier offerings prior to going
to market. 
38. The professional interpreter community stressed
to us that court and legal interpreters require specific skills
that are not required in interpreting in other fields.
For example, one respondent to the e-consultation said:
"We need to understand how long it takes to
learn a foreign language to a certain standard, in order to be
able to interpret from and into it within a specific sector. First
of all it takes decades to learn the language itself and later
you need to obtain a specific set of skills that are required
in order to interpret. You need to be able to translate legal
terminology within seconds during a court session and sometimes
it is very difficult even for the best interpreters out there.
You need to take into account that it is a job that requires due
diligence, great listening and verbal skills, ability to transfer
a vast amount of information that is encrypted in a different
language within a short time frame."
A legal interpreter trainer of over 20 years said:
"A seemingly straightforward matter such as
bailing a defendant Only experienced, trained and qualified interpreters
have the skills to manage [...] complex communicative situations
[...]. Agencies who send untrained so-called
"interpreters" to jobs in the belief that the particular
procedure in question is "straightforward" or "not
complicated" do not understand the science of language nor
the ethics of situations in which interpreters find themselves,
which can be as unpredictable as the people for whom they interpret.
A seemingly "straightforward" matter such as bailing
a defendant to appear in court at a future date may be simple
procedurally, but difficult linguistically. Defendants may have
a regional accent or dialect which is difficult to understand,
may use slang or an idiom with which the interpreter is unfamiliar
and which requires clarification, may have speech impairment,
have mental health problems, or be distressed; s/he may thus speak
in a confused way such as not finishing sentences, or speak very
rapidly and incoherently. Added to this is the difficulty of understanding
the institutional language of the court or the police station;
despite their specialised language study, interpreters remain
outsiders to the system and must clarify such institutional language
for themselves before they can interpret it.
39. For this reason professional interpreters
and NRPSI had been seeking, and continue to seek, statutory protection
of title for legal interpreters and translators, as is the case
in some other EU states.
Interpreters did not believe that the MoJ sufficiently understood
the practice of court interpreting or the high calibre of skills
required. In their view this resulted in a flawed procurement
process which then failed to judge the quality of language services
40. It appears there may be some substance to
these assertions. In supplementary evidence submitted in early
October the MoJ explained that it was now using what it described
as "end-to-end process maps of the interpreter process in
each jurisdiction" to inform its work to resolve the remaining
Mr Handcock of HMCTS rejected a suggestion that the recent emergence
of these planning tools perhaps indicated that they did not have
sufficient understanding of the complexities of court interpreting
work at the time of the procurement process. He stated:
"I don't think that's true. We understood it
was a complex process and what set us out along the road of changing
the system was the complexity that we were dealing with, with
a very uneven system, different parts of the system with different
practices. One of our key objectives at the beginning of the process
was to have a much more consistent and straightforward system
] we understood perfectly well that we had overly complex
arrangements in place."
We were not convinced by this argument: understanding
the complexity of the work and understanding the complexity of
arrangements are two very different things.
41. Mr Handcock described the MoJ's stakeholder
engagement with the interpreter community as "extensive".
Martin Jones, senior reporting officer for the project, summarised
his recollection of the nature of engagement with stakeholders
when he appeared before the Public Accounts Committee on 15th
"a series of regional workshops were held, and
we certainly listened then [...] In terms of ongoing discussions
with the interpreters' organisations, the last meeting that I
had with an interpreters' organisation was in November/December
2011. That conversation was ongoing over time; there was never
a point at which I said, "I don't want to listen to you anymore."
I was continuing to listen, but ultimately, I think we probably
got to a point where the information from the majority of interpreters'
organisations was just, "Don't do this contract", but
the Ministry had obviously been through a competitive dialogue
process and we believed that it was the right thing to be doing."
42. The NAO concluded that while the MoJ engaged
with a range of stakeholders, including the interpreter community
throughout 2011, it "did not give sufficient weight to the
concerns and dissatisfaction that many interpreters expressed,
even though having sufficient numbers of skilled interpreters
was essential to the new arrangements' success".
43. Our evidence strongly
suggests that the Ministry of Justice did not have a sufficient
understanding of the complexities of court interpreting work prior
to initiating the procurement of a new service. The competitive
dialogue process failed to produce a working model that would
enable skilled professional interpreters to continue to service
courts and tribunals. The consultation that was undertaken was
limited because by the final stage of the competitive dialogue
process the nature of the new arrangements had been largely determined
and the important concerns that were raised by the interpreter
community, and others, even if they were heard, were unheeded.
44. The NAO agreed with the MoJ that "on
paper" ALS' bid was the strongest; it achieved the highest
score on non-cost criteria (i.e. service, innovation, quality,
supply and sustainability) and was the cheapest.
On the other hand, while the NAO found that the MoJ ran a fair
and competitive process, it concluded that the MoJ was not thorough
enough in its due diligencea standard process that allows
prospective customers to check on a company's credentials and
claimson ALS' successful bid.
Even though the MoJ had identified many of the risks of working
with the company, in the NAO's view it did not do enough to mitigate
those risks, and in some cases give them sufficient weight. Some
examples included: a failure to heed a financial report commissioned
by the Department that concluded that the company was only suitable
for contracts up to £1m; a failure to seek independent advice
on ALS' proposals for the tiered model of qualifications and the
new assessments; and a failure to consider sufficiently the impact
of interpreters strong dislike of ALS and their concerns about
the new arrangements.
45. Our evidence supported this. We heard that
interpreters had repeatedly expressed their concern that ALS'
turnover and accounts suggested that it was not sufficiently financially
secure to handle a contract of that magnitude.
For example, Dr Zuzana Windle told us that, in her capacity as
then Director of the Professional Interpreters Alliance, she had
sent to the procurement department documentation that she believed
provided a clear indication that ALS "was not suitable for
a contract of this nature".
This included a dossier of reported problems with ALS' contract
with four North West police forces and credit ratings and official
records relating to Mr Wheeldon's other companies. Dr Windle also
drew our attention to the fact that in the early stages of the
implementation of the North West police contract ALS had been
subject to successful judicial review for underperformance which
led to the contract's temporary suspension.
46. There was clear potential
for problems with ALS' capacity to deliver on its promises which
were not adequately anticipated or dealt with either by the Department
or by the contractor itself. We share the National Audit Office's
concerns over the weakness of the Department's due diligence and
risk mitigation procedures. This is a cause for concern at a time
when the same Department is likely to be responsible for a large
complex centralised commissioning programme for implementing the
"Rehabilitation Revolution". In response to one of the
recommendations of our report The budget and structure of the
Ministry of Justicewhich expressed similar concerns and
called for an independent review of the Department's capability
in commissioning serviceswe were told that a strategic
approach was being taken to building the requisite skills.
We hope that lessons have
been learned from this experience, and, given the amount of outsourcing
the Department is to be engaged in, we seek further assurances
of the Department's capacity in this area and repeat our call
for an independent review before any further major projects commence.
The resulting new arrangements
47. According to Capita Plcwhich acquired
ALS for £7.5m in December 2011the Framework Agreement
offered the MoJ the following elements:
i. Standardised approach to establishing the
skill level of interpreters by way of a tier based system.
ii. Standardised interpreter pay and conditions
for all interpreters working as part of the Framework Agreement.
iii. Creation of an online portal through which
bookings are made, administered, invoiced and through which payments
to interpreters are made.
iv. Implementation of a robust complaint procedure
ensuring any complaints raised by the MoJ are dealt with quickly
and effectively, including the removal of interpreters from the
supplier base who were deemed to be of insufficient quality which
was not possible under the previous arrangements.
v. Availability of management information on
a nationwide basis which was not previously available.
48. Mr Andy Parker, Joint Chief Operating Officer
of Capita Plc, described how this worked in practice:
We provide a booking portal. We give a service where
we have a central complaints service. We ensure all the vetting
is done. We ensure all the interpreters are correctly tiered and
correctly qualified. We liaise with the court and then we provide
a booking service for the courts on our IT. The courts make the
request, either by telephone to our call centre or directly on
to the portal, and then the interpreters have the ability to take
those jobs without intervention by looking at our portal. If a
job isn't fulfilled by the portal, we would phone up a variety
of interpreters based on their relevant skill sets. But on the
basis that they don't actually work for us we're not really controlling
who does what; we're just making the job available.
49. Financial and time savings were to be achieved
as a result of: operational efficiencies through centralised booking;
technology-driven job allocation; less administration and more
detailed management information.
The MoJ estimated that its agencies and police forces could save
£18 million a year in payments to interpreters alone, with
further efficiency savings as a result of reduced administration.
The original aim of the review had been to reduce costs by 10%
i.e. £6 million.
Ms Beasley was clear that one of the MoJ's key drivers in proceeding
with the Framework Agreement was financial: "we wanted to
reduce the cost and we wanted to implement fee regimes that were
actually operating elsewhere within the language service market
because it would save us money."
In the next two chapters we examine how these new arrangements
were implemented and have subsequently been operating and consider
the extent to which the objectives of the procurement exercise
41 The National Audit Office, The Ministry of Justice's
language services contract, September 2012, para 1.8 Back
HC Deb, 15 September 2010, cols 46WS-47WS; see also Ev 30 Back
In February 2011, PIA had sent to the MoJ a pre-action for Judicial
Review letter which they believe is the only reason that any consultation
took place. See Ev 109. Back
Ev 127 Back
Ev w53, Ev 38 Back
Ev w53 Back
Ev 69 Back
Ev 53, The name of the contractor was not publicly announced during
the consultation exercise but rumours had been circulating amongst
the interpreter community that it was ALS. Back
Ev w93 Back
Ev w108 Back
Ev w115 Back
Q 13, Ev 120 Back
Ev 109, Ev 120 Back
Ev 38 Back
Q 12 [Ms Lee], Q 16 [Mr Rosenthal] Back
Ev 120 Back
Qq 13-15. See Ev 120. 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. Back
Ev w36, Ev 83, Ev w70, Ev w115, Ev w124 Back
Qq 186-187 Back
Qq 19-20 Back
Q 21 Back
Q 22 Back
Ev w5 Back
Tomasap, respondent on online forum, see Annex Back
Ev w25 Back
Q 7 [Mr Sangster] Back
Ev 109, Q 17 Back
Ev 53 Back
Q 184 Back
Q 185 Back
HC (2012-13) 620 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 1.13 Back
Ibid, para 1.11 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 1.13 Back
Ev w20, Ev 83 Back
Ev w118, Ev w123. Back
HC (2012-13) 97-I Back
Ev 52 Back
Q 147 Back
Ev 30 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 1.12 Back
Ev 83 Back
Q 206 Back