Conclusions and recommendations
Interference with witnesses
1. 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.
(Paragraph 10)
2. 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. (Paragraph
11)
3. 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.
(Paragraph 12)
Previous arrangements for interpreter services
4. Notwithstanding clear administrative inefficiencies within the variety of previous arrangements for the provision of interpreting services to the courts, we conclude that there do not appear to have been any fundamental problems with the quality of services, where they were properly sourced i.e. through arrangements that were underpinned by the National Register of Public Service Interpreters, with interpreters qualified in the Diploma in Public Service Interpreting, and under the terms set out by the National Agreement. (Paragraph
24)
The procurement process
5. 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. (Paragraph
43)
6. 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.
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 (Paragraph 46)
Early operational problems
7. We have referred above to the Ministry's efforts to prevent us receiving first hand testimony from court and tribunal staff on the standards of interpreting services. It is clear to us from the evidence we have been able to collect that the quality and effectiveness of court and tribunal interpreting services was seriously hampered by ALS' performance.
(Paragraph 59)
8. We are seriously concerned about the increase in ineffective trials as a result of non-attendance of interpreters, particularly in magistrates courts. We will monitor the quarterly statistics on ineffective trials for the remainder of the year to see whether this is an ongoing trend.
(Paragraph 63)
Explanatory factors for poor performances
9. The decision to opt for a regional roll-out was done partly to prevent regional boycotts, suggesting that the MoJ were all too aware of the scale of serious resistance from amongst the interpreter community. The MoJ was, at best, naïve to view the new arrangements simply as an "outsourced booking process". Interpreters had repeatedly raised significant concerns about the new terms and conditions under which they were expected to work.
(Paragraph 72)
10. The professional interpreter boycott undoubtedly contributed to ALS' difficulties in coping with demand but we do not believe it entirely explains them. The Ministry of Justice and its contractor appear to have buried their heads in the sand. Many of the concerns that interpreters raised regarding the nature of the new operating model were realised during implementation, were utterly predictable, and should have been properly considered from the outset.
(Paragraph 88)
11. The interpreter community drew the Ministry of Justice's attention to the wildly unrealistic distance key performance indicator during the consultation process but this was disregarded. The number of languages required, the uneven distribution of interpreters and their language combinations across the country, the irregular schedule of courts and police services, last-minute contracting, and varying language needs, all inevitably make it necessary for interpreters to travel long distances. We are concerned that this is a further factor that deters professional interpreters from working under the Framework Agreement as travel expenses have been reduced. If Capita TI is absorbing higher travel costs than ALS first estimated there may be implications for future cost savings. (Paragraph
100)
12. ALS did not make it clear to the MoJ that the three tier system for interpreters had not been supported by the independent expert it had consulted. The Department has sanctioned, untested, a tiering system that imposes major changes to professional occupational standards and has significant potential to undermine the progress that has been made in professional development and resulting improvements in the quality of interpreting services provided in the justice sector. It would be disastrous if the Department continued to permit the courts to be starved of highly qualified interpreters. Just as the Department had concerns that membership of the National Register did not guarantee quality, we fear that a diminution of quality is an inevitable product of implementing a new system which does not accurately evaluate the skill levels of professional interpreters. (Paragraph
102)
13. Being able to communicate in a given language does not make someone an interpreter. The National Agreement, the National Register and qualifications that underpinned it were put in place to safeguard the right to a fair trial. The level of concern that arose during the consultation process regarding the potential diminution of quality standards by imposing the tiered system, diluting qualification requirements and imposing lower levels of pay suggest that the Ministry of Justice was determined to pursue the implementation of the Framework Agreement in the face of evidence that it would reduce the quality of language services available to the courts.
(Paragraph 103)
14. We are astonished that the pilot was not used to test the tiering system and assess whether interpreters meeting the new standards could perform adequately in court. We are particularly concerned at the decision of the Ministry of Justice not to seek to build on safeguards developed under the previous system whereby interpreters other than those registered by NRPSI were to be used only in exceptional circumstances. We support the National Audit Office's proposal that the tiered system should be independently evaluated.
(Paragraph 104)
15. The use of tier 3 interpreters in courts and tribunals should be reserved for those cases in which it is absolutely unavoidable, such as in rare languages for which there is no relevant professional qualification, or to meet the specific needs of a deafblind person who requires a particular mix of skills in an interpreter. Alongside fulfilment rates, the MoJ should monitor the level of use of particular tiers of interpreters by HMCTS and ensure that any instances of inappropriate use of tier 3 interpreters can be properly investigated and managed. (Paragraph
105)
16. It is unreasonable to expect interpreters to be available for as long as they may be required and not paying for the full time actually required. (Paragraph
121)
17. We conclude that under any scenario the levels of remuneration available to interpreters servicing the justice sector have significantly reduced. This in part explains why NRPSI interpreters have refused to work under the new arrangements and this in turn impacts on the ability of the contractor to fulfil jobs at a rate which meets demand. The 2001 Auld report recommended a review of the level of payments to interpreters with a view to encouraging more of the best qualified interpreters to undertake work and to establish a national scale of pay. The same interpreters now feel that they have been forced to leave the market.
(Paragraph 123)
18. The bulk of the savings accrued in contracting ALS to provide interpreting services appear to stem not from the resolution of administrative issues which were causing inefficiencies, and were a key factor motivating the change, but from a reduction in interpreter pay. In devising the new pay structure the Ministry of Justice and ALS failed to appreciate the differences between court work and police work that would result in court interpreters being unable to achieve a sustainable level of income. We recommend that the MoJ audit the true amounts that are being expended on interpreter pay and travel by Capita TI to establish whether the contractor is providing a level of remuneration that is unsustainable and may already be having a deleterious effect on the quality of interpreters that will be available to the justice sector in future. In order to ensure that the best qualified interpreters are available to courts and tribunals it may be necessary for Capita to further increase the rate of pay for the highest qualified at tier 1.
(Paragraph 124)
19. ALS and Capita paid lip service to the regulatory duties accepted under the Framework Agreement. The inability to cope with complaints and the failure of basic vetting procedures are key examples of ALS' lack of capacity to deliver on its promises to the Ministry of Justice.
(Paragraph 128)
Steps taken to rectify under-performance
20. ALS clearly needed significantly more resources than it had at its disposal to deliver the service levels that it promised under the Framework Agreement. The Ministry of Justice was only saved from its failure to conduct proper due diligence, or to take account of the views of consultees, and from the likelihood of subsequently being forced to terminate the contract, by the fact that Capita bought ALS and has been willing to invest heavily in the infrastructure required to salvage an operating model under the Framework Agreement. (Paragraph
136)
21. Performance figures clearly do not reflect the company's fulfilment against 100% of the requirements of HMCTS and they should be altered, retrospectively and in the future, to indicate this.
(Paragraph 141)
22. The level of customer cancellations seems rather high. We recommend that Capita TI reissues guidance to staff regarding the logging of customer cancellations. We also recommend that the MoJ undertakes an audit of fulfilment data with a focus on the reasons for customer cancellations, and uses their findings to seek to reduce the level of these by its agencies' stakeholders. (Paragraph
142)
23. We are encouraged that the feedback to MoJ suggests that participants within agencies of the justice system other than courts and tribunals are satisfied with ALS' performance under the contract. (Paragraph
143)
24. We are pleased to hear that service levels have improved markedly in recent months and that this will allow HMCTS to book all of the interpreting work it requires through Capita TI in the near future.
We call on the Ministry of Justice to keep us apprised of fulfilment rates, and their estimation of the volume of work demanded by HMCTS that Capita TI are being asked to fulfil, on a monthly basis until we can be satisfied with the extent of improvement.
(Paragraph 152)
Costs of remedial action and implications for
cost savings
25. While the contract is delivering significant cost savings to the Ministry of Justice, these are not at the level promised. Additional costs are currently being borne by the contractor and there may be future ramifications for the Department when it comes to re-commissioning interpreting and translation services if these financial issues are not resolved. We are concerned that the existing arrangements are financially unsustainable in the sense that Capita TI is propping up the continuation of the Agreement, so the Department's savings are effectively being secured at the company's expense. There is a distinct risk that the MoJ will not be able to continue to realise the same level of cost savings in the future and that when the time comes to re-tender the contract there may be an insufficient supply of professional interpreters to furnish it. The MoJ would then be left with fewer savings and an enduringly poorer quality of service. The MoJ must get a better grasp of the costs of underperformance. It is unacceptable that existing cost figures do not account for cases that have been (repeatedly) adjourned because of interpreting problems and those in which a defendant has been unable to apply for bail and has consequently been remanded in custody. In its response to this report and at regular intervals thereafter we call on the Ministry to inform us of its updated assessment of its cost savings.
(Paragraph 161)
Future priorities
26. We are surprised that there is no absolute target of numbers of interpreters for the supplier database. Before the MoJ seeks to rollout the operation of the agreement fully to the Crown Prosecution Service it must ensure that Capita TI has determined a defined minimum necessary to deliver that work. We also consider it necessary for the MoJ to undertake or commission some work to establish more clearly the requirements of the CPS than was done in respect of HMCTS.
(Paragraph 164)
27. We support the new approach planned for assessing interpreters provided that Capita TI ensures that any quality assurance elements that underpin it are appropriately tight and rigorously monitored. (Paragraph
166)
28. We are dissatisfied that Capita TI has failed to provide for those on its supplier list a proper programme of professional development almost one year after it began operating under the Framework Agreement.
(Paragraph 167)
29. It is clear that the contractual terms regarding the appropriate qualifications and CRB checks for those servicing the contract continue to have been flagrantly disregarded until very recently. We are dismayed that a contractor should apply such an apparently lackadaisical approach to verifying qualifications and executing appropriate vetting. While there have been improvements these have taken a very long time to achieve, even with the considerable performance improvement resources at Capita's disposal. We are concerned that the Ministry of Justice has so recently found evidence that questions persist as to whether interpreters on the supply list are meeting appropriate quality requirements in terms of having properly verified qualifications and experience as defined under the tiered system.
We are not yet satisfied that there are sufficient safeguards currently in place to ensure that only suitably qualified interpreters are providing services to HMCTS.
(Paragraph 171)
30. We welcome the Department's efforts to quality assure the work of Capita-ALS in implementing the Framework Agreement, but we believe that, in the absence of an independent regulator, this mechanism should have been in place from the start and we are concerned that regular monthly checks continue to be necessary some nine months or so into the operation of the contract. The Ministry of Justice has shown ALS, and subsequently Capita TI, considerable leeway in not rescinding the contract despite ongoing breaches of their obligations under the Framework Agreement, and has presumably had to devote more resources than expected to close monitoring of the contract. We ask the Ministry of Justice in its response to this report to provide us with an estimate of the administrative costs of providing such a considerable level of oversight of the contract. (Paragraph
172)
31. Notwithstanding the progress that has been made, we consider that the Ministry of Justice and Capita TI have much hard work ahead of them to restore the trust of sentencers and the legal profession. We recommend that the MoJ considers negotiating with Capita TI to replace the distance indicator with an indicator of quality, for example, a user satisfaction measure. (Paragraph
177)
32. We recommend that the MoJ establish a dedicated phone number for registering complaints about interpreter services for those stakeholders who do not have access to the portal, and publicise the existence of this complaint route. Data on the number of complaints received by this route, and the proportion of such complaints that are fed through to the portal, should be published alongside statistics on complaints made directly through the portal itself. (Paragraph
181)
33. We welcome the Minister's willingness to engage in discussion with the interpreter community and we will monitor the outcome of these discussions.
(Paragraph 182)
34. The failure of Capita-ALS to implement appropriate safeguards until, following the National Audit Office recommendations, they were required to do so by the Ministry of Justice, has reinforced the concerns of the interpreter community about the fact that the service provider is responsible for almost all functions.
It has certainly taken some time, and the impetus of the NAO's investigation, followed by more rigorous monitoring by the MoJ, to highlight exactly where the problems lie and to see real progress in performance.
(Paragraph 190)
35. Our evidence suggests that the most important priority for the MoJ is to establish whether the strengthening of quality assurance arrangements, and other work that has been done to remedy other problems, are sufficient to improve the quality of interpreting services provided to HMCTS under the Framework Agreement. We share the National Audit Office's concern that the existing safeguards of quality within the system may not be fit for purpose; if this is not addressed it is likely that the confidence of important stakeholders, including the judiciary, magistracy and legal professionals, will continue to be undermined, and that many professional interpreters will continue to be reluctant to provide their services. We support the National Audit Office's recommendation that these standards should be independently reviewed and look forward to seeing the results of that assessment. (Paragraph
191)
36. Our evidence suggests that the concerns of many members of the interpreter community will not be dispelled by insipid and general responses from the MoJ on such issues as remuneration, and rebuilding trust, for example. It is likely that concrete safeguards will need to be negotiated, for example, following the independent review of the tiered system of qualifications proposed by the NAO, a proposal that we also endorse. The language used by the Minister in describing the path that the MoJ must take to move forward, appears to illustrate the Department's acceptance that the Framework Agreement requires some renegotiation, albeit through careful and creative cooperation with Capita TI. The Ministry and Capita TI must prove that the Framework Agreement is capable of attracting, retaining and deploying an adequate number of qualified and competent interpreters to meet the requirements of the courts and other agencies. This will also require the professional interpreter community to work flexibly with the Department in seeking to find an acceptable way to restore their services to the justice sector. It is essential that this is achieved before fully extending the reach of the contract to other justice agencies.
(Paragraph 192)
37. We believe that ultimately there should be a regulation system that is independently organised to select and classify interpreters for the appropriate level of court and tribunal work, assuming that some form of tiering remains in place following the review, and ensure that they are held accountable for delivering to the standard required. In the meantime it is important that the functions of Capita TI in delivering quality assurance are clarified, and if necessary, further strengthened. In addition we consider that there is a strong case for a further review of rates of remuneration and modelling of the potential impact of increasing these rates, particularly for highly qualified interpreters, on registration rates.
(Paragraph 193)
European Directive
38. The transposition into UK law later this year of EU Directive [2010/64/EU] on the right to interpreting and translation during the criminal justice process will prove a timely test of the appropriateness and robustness of quality safeguards embedded in the Framework Agreement and the efforts that have been made to strengthen them in the light of the reports of the National Audit Office and two parliamentary select committees.
(Paragraph 196)
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