House of Commons - Interpreting and translation services and the Applied Language Solutions contract

Interpreting and translation services and the Applied Language Solutions contract - Justice Committee Contents

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.[41] 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.[42]

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.[43] 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 impact assessment.[44]

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 arrangements.[45] Some respondents from the interpreter community also suggested that they would refuse to be re-assessed and that potential changes to the pay structure—on which they were not consulted due to commercial sensitivities—meant that many interpreters might be unable or unwilling to continue working in the justice sector.

28. The responses reportedly led to some refinements in the model, including to the qualification requirements.[46] 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.[47] 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 process

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 contractor.[48]

THE USE OF THE COMPETITIVE DIALOGUE PROCESS

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.[49] Another company, Cintra Ltd, was of the view that the tender process was well designed in its early stages.[50] 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.[51]

CONSULTATION WITH THE INTERPRETER COMMUNITY

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 on them.[52]

32. In particular, the Professional Interpreters for Justice Campaign—comprising eight membership organisations, together representing over 2320 registered and qualified interpreters, and other non-membership stakeholders—expressed 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.[53] 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.[54] 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."[55] 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.[56] 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.[57] 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.[58] 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".[59]

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.[60]

35. Mr Rosenthal stated:

"[…] there is every sign that all consultation with the profession was what one colleague has referred to as "nonsultation" […] 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 going on."[61]

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".[62]

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. [63]

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.[64] 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."[65]

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.[66]

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.[67] 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 it sourced.[68]

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 implementation issues.[69] 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."[70]

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".[71] 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 October:

"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."[72]

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".[73]

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.

DUE DILIGENCE

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.[74] 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 diligence—a standard process that allows prospective customers to check on a company's credentials and claims—on ALS' successful bid.[75] 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.[76]

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.[77] 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".[78] 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 Justice—which expressed similar concerns and called for an independent review of the Department's capability in commissioning services—we were told that a strategic approach was being taken to building the requisite skills.[79] 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 Plc—which acquired ALS for £7.5m in December 2011—the 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.[80]

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.[81]

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.[82] 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.[83] The original aim of the review had been to reduce costs by 10% i.e. £6 million.[84] 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."[85] 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 were achieved.