QC at Lincoln House Chambers | Tower 12 | Manchester
The Public Accounts Committee and the Justice Committee had already laid waste the MoJ’s handling of this contract in their reports. In this debate, Helen Grant tried to respond for the government to their eviscerating criticisms.
It was woeful. Not woeful in the sense that she dithered, bumbled, or read badly from her notes; she was trying to make a silk purse from a sow’s ear and not surprisingly she delivered up a dog’s breakfast. She didn’t answer a single relevant question directly or at all. It was so silly it was excruciatingly embarrassing to watch – but you can if you want, the link’s at the top.
Although she delivered the response with a suitable facade of respect for the occasion, the words she read illustrated the growing irritation and intransigence at the Ministry of Justice. They are now facing mounting, if not overwhelming evidence and meeting it with obstinate spin and obvious contempt for their critics. Just today, I notice, Nick Clegg has (at last) added his voice to the many critics.
Helen Grant clung assiduously to, and repeated one statistic –
there were only 0.4% problems in the 1st and 2nd quarters of 2012 in the Magistrates Courts; only 345 of 80,000 trials listed were affected
That might even be true; but even if it is, it’s an anomaly, and it’s completely and quite deliberately misleading. The contract requires a 98% success rate. The latest figures show that (at best) Capita is struggling to achieve 90%. The other parties to the debate all knew this, and made it quite clear to her that they knew it.
Sir Alan Beith described her as “conscientious”, using his gift for masterful understatement to damn her with very faint praise indeed. He described the whole episode in these words –
..it might almost have been constructed as a cautionary tale of what a department should avoid in undertaking a procurement process and contract management process… and this is a department that intends to undertake several such processes, some of them much larger even than this one, so some lessons have got be learnt pretty quickly…
He made it quite clear, both in opening and closing, that ‘this is not the end’ in relation to the interpreting contract. He was completely unconvinced by her repetition of phrases like these –
‘initial teething problems;’ ‘lessons have been learned;’ ‘we’ve made savings of £15m;’ ‘there are no longer supply problems;’ and ‘we now have a sustainable model.’
Helen Grant, he said, had failed to convince anybody.
Sir Alan was also very angry with the conduct of the MoJ. His committee had arranged a survey of court staff to assess, by means of their responses, just how the Capita scheme was working in fact. This was blocked by order of the MoJ, claiming that it was inappropriate for civil servants to comment on matters of policy. Sir Alan plainly saw this explanation as being utter bullshit, (though he of course is far too refined to use such language – he slightly raised an eyebrow) but he warned the MoJ that should it persist in such conduct, it will find itself in contempt of the House. Strong stuff.
The information from court clerks would have been valuable. It transpires that many of them (probably with judicial backing) are by-passing Capita and booking interpreters direct, as they used to. This of course skews the figures in favour of the MoJ and Capita, since it reduces their exposure. Sir Alan also made clear to Helen Grant that he will not accept her figures for savings made (of £15m), since the MoJ simply refuses to supply his committee with any quantification of the costs attributable to Capita’s failures. He has asked them for, at the very least, an assessment.
One of the important things that both the Public Accounts and Justice Committees have picked up on is the important difference between outsourcing and contracting. It’s not always easy to grasp, but here goes. When you outsource, you do so to bodies or people whose quality you have assessed, and who undertake themselves to do the work for you. But when you contract, (as here, and as is proposed with legal aid) you are contracting with an organisation which promises to find and provide you with ‘bodies’ or ‘providers’ with the quality, knowledge and the requisite expertise to do the job in question. In other words, you are contracting the outsourcing.
Look at it this way. Think of Trevor Howarth of Stobart. He’s not a lawyer; he’s not the head of a legal company; he’s a middleman who is offering to contract with government to supply legal services. He can claim to have access to lawyers of quality (for example barristers who are qualified for public access work). Like Capita and Ticketmaster, he’ll just be another booking service. Capita theoretically has access to interpreters but isn’t able properly to deliver. Will Stobart be able to deliver?
Interestingly, for Stobart and some others, it may simply be about winning the bid – whatever the MoJ may say about quality. ALS, who were the original contractors, profited to the tune of several millions of pounds when they sold their contract to Capita. They had failed to deliver effectively – but they had won the all important bid. (You can read more about the man behind ALS here). There are other examples of this happening with departmental contracts.
It’s one thing buying a ticket, booking a lorry or even arranging the delivery of prisoners. These are all repetitive and largely mechanical functions that vary little in the day to day challenge they pose. They involve nothing in the way of the exercise of discretion, skill or judgment and they need only ever be of ‘acceptable’ quality.
Contracting intellectual services seems to me to be an entirely different kettle of fish; hence Capita’s problems with the best and most highly skilled interpreters. Anybody can claim to have access to professionals of the highest quality. Win the contract, and you can send anybody who speaks the appropriate language along to interpret, and you can send any lawyer who can do ‘whole sentences’ along to argue a case. The less they charge, the more you make. Of course, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need.
The key thing in the real world is how the professional performs; how well and faithfully the interpreter interprets, and how well and conscientiously the lawyer presents and argues the case. The right person for the job is what matters; that’s what needs to be delivered.
For justice to be done and to secure a fair trial for all, each and every contractor must be required to deliver that necessary quality in every case. But it just can’t be done; it’s against the contractors’ interests, and it’s too big a job for the MoJ to monitor them. This is what the MoJ just doesn’t get.
The Monty Python team got the point about delivering what you’ve promised; someone at the MoJ needs to take note.