QC at Lincoln House Chambers | Tower 12 | Manchester
Interpreters predicted and represented to the MoJ that the language contract would be a disaster. They were right.
I’m happy to say The Bar Council is working with the Interpreters to collate evidence of the failures. I hope the results will help their case. They were treated appallingly. Many of the Interpreters will know the background to the ALS contract only too well.
But I suspect many lawyers will have only seen the “train crash” headlines, and experienced the problems at court. I watched Helen Grant responding to the criticisms of the Justice and Public Accounts Committee in a recent debate, and wrote about it here. I was so amazed at what I learnt that I went back and looked at what had happened at the Public Accounts Committee. The exchanges below are taken from the hearings.
It’s as well we know the nature of the beast we’re dealing with, even if Chris Grayling has given a little ground on choice today.
The MoJ is currently crowing to the public about how vital it is to get the very best value from every penny it spends from hard-working taxpayers’ money. Who would argue?
As Basil Fawlty memorably said:
Next contestant, Mrs. Sybil Fawlty from Torquay. Specialist subject – the bleeding obvious.
The question is how to get the best value. This is a summary of how the MoJ dealt with taxpayers money in its dealing with ALS. They were unable to distinguish between value and cost.
The history of this contract is truly extraordinary, and the whole process was rotten for 2 reasons.
The first was simple. It’s something we all do every day – weighing up who you’re dealing with and deciding whether they will deliver if you hand over your money: and the second was the complete failure to understand that the work Interpreters do in the Justice system is crucial.
Price came first and quality came nowhere.
How careful would you be before signing a £150m contract? A lot more careful than they were. The MoJ handled it disastrously badly; ALS, the company they contracted with, was too small and it was under-resourced. The MoJ had commissioned a report on ALS’ standing, but the 3 officials who signed off on the contract hadn’t read it. They also needed to know how many interpreters ALS had available before ‘going live’; they either misunderstood what ALS meant by the word ‘registered’ or they were lied to. Either way, there weren’t enough interpreters. Finally, they deliberately accelerated the contract nationwide in an effort to bully the Interpreters, because they felt that a regional roll-out might be boycotted.
It’s hard to imagine they could have given any thought to the nature of the contract they signed or the services they were buying. They paid insufficient attention to the quality of the interpreters that ALS were to provide for each assignment.
They seemed completely oblivious to the fact that this contract involved the provision of services to people in extremely serious circumstances. For instance, individuals held in custody are regarded as vulnerable persons under the Safeguarding Vulnerable Groups Act 2006. How much more vulnerable are they if they don’t understand what’s being said to them – perhaps even why they’ve been arrested – and can’t make themselves understood? People on trial deserve an interpreter who is more than just someone who speaks their language; and courts requiring interpreters for defendants, witnesses or victims are entitled to expect a prompt attendance, a professional approach, and an accurate and faithful translation. If an interpreter under-performs who will know? Probably not even the defendant. Truly lost in translation.
For all of these reasons the State needs to ensure that it is providing Interpreters of sufficient quality – and that means paying appropriate fees. Pay peanuts, get monkeys. Or in this case, a rabbit called Jajo and a cat.
Here’s how it went.
Ann Beasley CBE, Director General Finance & Corporate Services, Ministry of Justice,
Peter Handcock CBE, Chief Executive, Her Majesty’s Courts and Tribunals Service,
Martin Jones, Deputy Director, Sentencing, Ministry of Justice, gave evidence.
NB: Aileen Murphie who provides information and statistics from time to time (to assist the Committee) is from the National Audit Office and not the MoJ.
Ursula Brennan: Failed to appear. Margaret Hodge, Chair of the Committee said about Ursula Brennan’s absence-
Obviously something went wrong with communications and she thought that she had been stood down, but I am sure that you will all do a very good job. However, I did not want in any way to be discourteous to her.
Q51Chair: Do you think you were wrong to have signed this contract with ALS?
Martin Jones: I do not think that we were wrong to sign this contract with ALS.
Q52Chair: Do you agree with that Mr Handcock?
Peter Handcock: I agree very strongly with that. The Report makes very clear that we needed to make some new arrangement-
Q53Chair: I am not arguing about that; I am saying: do you think you were wrong? Let me repeat the question, and I would really appreciate a direct answer. We are not asking for a justification for engaging a procurement process. I am just asking, after looking at this Report and what we have found: do you think that you, as the responsible officers, were wrong to sign this contract with ALS?
Peter Handcock: No.
Q54Chair: Well, I find that astonishing.
Q55Chair: You were told that £1 million was the maximum. Dun and Bradstreet-whoever it was-gave you advice that said, “Don’t sign a contract with ALS for more than £1 million.” You signed a contract for up to £42 million. I want to know what on earth you were thinking about.
Q59Nick Smith: At the time, did either of you look at the report?
Martin Jones: I have certainly read the report.
Q60 Nick Smith: At that time?
Martin Jones: I didn’t read the report at that time.
Q61 Nick Smith: Ann Beasley, did you read that report at that time?
Ann Beasley: No, but staff working for me did.
Q62 Chair: Mr Handcock, did you?
Peter Handcock: No, I didn’t.
Q75Chair: Can I ask the next question then, on process? A Mr Brooke Townsley, an academic from Middlesex university, gave advice to ALS and he expressed, as I understand it, profound reservations about the validity of the proposed tiering-I am looking at page 12, paragraph 1.13-and also about the in-work assessments. Did you see that advice, Mr Jones?
Martin Jones: I saw views from Mr Townsley that suggested that he was actually impressed with the assessment process. I certainly did not see anything suggesting that he had profound reservations-
Q76Chair: Did you ask to see his total report?
Martin Jones: I did not ask to see his total report.
Q80Chair: If you have somebody who is providing advice on absolutely basic aspects of this contract-whether the tiered approach and the in-work assessments worked-wouldn’t you have thought, in being responsible for taxpayers’ money and for the quality of service, that you would have asked to see the report that would give you evidence as to whether an objective assessment suggested that ALS could deliver what it was promising?
Martin Jones: I think, with hindsight, there are certainly lessons that we need to learn from this in terms of how we should do things…
Q81Chair: So you accept that you should have asked for it really.
Martin Jones: I think I do, yes; sorry.
Q92Chair: Whose job is it to make sure that the quality of the interpreter is right? Is it ALS’s, or whose?
Ann Beasley: That is the role of ALS.
Q93Chair: So it is not just a booking service. It also has to verify the quality.
Ann Beasley: That is part of the registration.
Q94Chair: Whose job is it to make sure that somebody actually appears at the court at 10 o’clock on Monday morning?
Ann Beasley: Well, there are two parts to it, aren’t there? Somebody from the court needs to book and say that they need an interpreter.
Q95Chair: Of course, but whose job is it, once they have booked?
Ann Beasley: There are people in the call centre in ALS who find an appropriate interpreter.
Q96Chair: Well then, stop telling us it is a booking service; it is not. It is a service that is supposed to verify and authorise whether or not interpreters have the right qualification, and make sure that they are there on time, on the day, at the appointed court.
Ann Beasley: Well, that is what I would call a booking service.
Martin Jones: 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.
Q131Chair: But if you knew they were not going to work in this contract, and you knew that you only had 280 interpreters in January, why on earth did you not hold back? It just seems crazy.
Martin Jones: …When I finally agreed to go live on this contract, in the middle of January, the answer was that they had well over 2,000 interpreters registered as wanting to work for them and that 1,200 interpreters had been assessed.
Q136Chair: Did they lie to you?
Martin Jones: I do not think they lied to me. I think the position was that-
Q137Austin Mitchell: Heads behind you are nodding “Yes”…
Q140Fiona Mactaggart: You must have had those numbers, so how do you go ahead when you have got only 280?
Q142Chair: Mr Jones, to take it at its most ridiculous, I understand that the owner of a cat registered him as a feline language specialist as a joke, and was then asked by ALS to bring the pet in for a language test. …we have been given a long dossier – from 17 July 2012:
“After reading about Jajo the rabbit I decided to register with ALS. I had no intention of working for them. I only wanted to see how far I could go and how incompetent ALS is. So I registered with a fake name (the name of a fictional character) a fake address (a well-known official residence of a head of state), a mobile number with only 10 digits and an obviously fake Skype name. No qualifications, no experience, no security vetting. Two days after I registered I got my first job offer, a 45 minute job at a court in central London. Soon after that I received an email inviting me to take the assessment test, I did not reply, but I carried on receiving job offers. In total, up to now, I have received 12 job offers.”
Martin Jones: I have looked at a number of allegations of this kind and I have fed those through to ALS to investigate for us. On a number of those, they cannot find that interpreter on their system. Obviously, once I have the details of that one, I will ask the question again and perhaps write back to the Committee.
Q150Chair: Mr Jones, can you describe for us the protocols for ensuring appropriate quality? What are your protocols? You knock people off if they are brought to your attention. The NAO found 50 people-I don’t know how many days’ work you did, Aileen, but probably not a lot-who had neither the qualifications nor the CRB checks, but that seems fortuitous rather than planned, so what are your protocols for ensuring quality?
Martin Jones: Our protocols are that nobody should be working under this contract unless they have the relevant qualifications.
Q152Chair: You would not get a dossier like this and you wouldn’t get the NAO going in and finding 50 people who were working with no evidence of qualifications or of CRB checks if your edict that “Thou shalt not work” was operating effectively; it is not. You need further protocols to ensure quality because otherwise it is justice denied.
Martin Jones: The National Audit Office will attest to the fact that when that came to our attention, we immediately ensured that those interpreters were no longer working for us.
Q173Chair: Are you convinced, Mr Handcock, that all the people currently being used by Capita as interpreters have got the qualifications they claim to have and have got the enhanced CRB check? Are you now telling me we can be certain of that?
Peter Handcock: I do not think we can be completely certain.
Chair: Oh dear, dear, dear.
Q102Ian Swales: Is the Ministry of Justice logging the cost of trials delayed due to the absence of interpreters? The previous witness talked about randomly attending a court and finding a case delayed because of the lack of an interpreter on Friday last week. Are you logging that, and do you know what it costs?
Peter Handcock: It is quite difficult to log the cost, but we are logging the incidence.
Q103Chair: Why? Why is it difficult to log the cost?
Peter Handcock: If you let me explain, there is an awful lot of anecdotal noise in the system-I am not in the slightest bit surprised at this-about the number of cases currently failing. It is a fact that in the first two months of the operation of this contract, only four cases were adjourned as a result of the failure of an interpreter.
Q104Chair: Only four cases?
Ian Swales: Four in two months?
Peter Handcock: In the first two months. I am sorry; I can do no more than give you the facts, rather than anecdote
Q105Chair: To be fair, Mr Handcock… the NAO says that only 58% of cases in the first month-Aileen, help me. How many cases had an interpreter?
Aileen Murphie: That 58% refers to bookings filled by Capita.
Peter Handcock: But the remainder were filled by the contingency arrangements that we had in place. If you look at the largest area of business-the magistrates courts, where the volume of cases is greatest-the net effect on the ineffective trial rate in the magistrates courts of the transition to these new arrangements is an increase of 0.2 of 1%.
Q106Chair: Hang on a minute. Look at what the Report says. I make a plea to you to give honest and open evidence to the Committee. The Report says that there was a doubling of ineffective trial cases; the Report says that. It also says that you do not collect the information to know how many were ineffective.
Peter Handcock: We do collect it. The NAO collected the data.
Q107Chair: Was it a doubling?
Peter Handcock: Yes. From 0.4 of 1%-
Q108Chair: How many?
Peter Handcock: The number was about 90-odd cases.
Aileen Murphie: Paragraph 3.6 shows that in the first quarter of 2012, 182 trials in the magistrates courts were recorded as ineffective, which means completely stopped.
Q110Chair: It doubled.
Peter Handcock: It doubled, but the numbers are relatively small.
Q111Chair: What is the cost of that?
Peter Handcock: ….it is very difficult to say, but our estimate is that it is somewhere in the region of £60,000.
Q112Chair: Is that the cost of the court, the cost of somebody being in custody, or the cost of the-
Peter Handcock: That is the cost of the court.
Q113Chair: So what is the cost of people being in custody?
Peter Handcock: Those people would not necessarily have been in custody…
Q119Nick Smith: Mr Handcock, I want to return to the said cost of £60,000 for the said loss of 90 cases. That works out at roughly £1,000 a case if it is averaged up. Does that include the cost of police time, custody and lawyers, or is it just the cost of the court building? What does it include?
Martin Jones: My understanding of the £60,000 cost that is quoted in the National Audit Office Report is that it is the cost to all agencies, so it includes an element of legal aid costs, police costs and CPS costs.
Q120Chair: Aileen, is that right?
Aileen Murphie: …We know that the costs are higher than that, but we do not know how much higher.
Q224Chair: When you sign a contract with a private contractor there are penalty clauses. However you look at this, in the first few months, from January to April, Capita/ALS failed to perform. Why didn’t you fine them?
Ann Beasley: We took a judgment that we needed to develop a long-term commercial relationship with ALS, because we were going to be doing business with them for five years. We knew their expectation when they went live was that it would take them a couple of months to get up to the service levels. We thought it was better to-
Q225Chair: You knew that when?
Ann Beasley: When we went live, they said it would take a few months.
Q226Chair: Again, that puts into question why on earth you went live.
Ann Beasley: There was always going to be that challenge.
Q231Chair: Since then, because they still haven’t been meeting the terms of their contract, why have you fined them only £11,000?
Ann Beasley: The £11,000 relates to the first four months.
Q232Chair: No, it does not. Of the £11,000, I think May and June are £2,200. There is nothing in the first four months. Am I right, Aileen?
Aileen Murphie: Yes, there was nothing between January and April.
Q234Chair: So it is not the first four months. I seem to know this contract better than you do. May and June was £2,200, and the entire period was only £11,000…
Ann Beasley: We have other opportunities to withhold money from their management, a proportion of the fee that we pay, if-
Q242Chair: And did you do that?
Ann Beasley: No, we have not done that to date.
Q244Nick Smith: Or maybe they would have provided a good contract in the first place, rather than the car crash we have at the moment.
Ann Beasley: We do not accept that it is a car crash.
Q252Austin Mitchell: I have a Yorkshire man’s question. Do we know how much the directors of ALS made out of selling their crock to Capita?
Ann Beasley: No.
Martin Jones: No.
Q253Austin Mitchell: Shouldn’t we know?
Ann Beasley: No.
Martin Jones: No. It is not our business.
Q254Austin Mitchell: If you have been involved in a huge contract worth £40 million, and you cannot fulfil it, and then you flog off your company to a bigger company, it is a good way of making money, isn’t it?
Peter Handcock: We do not have any right to know that. It was perfectly lawful-
Q256Chair: I do not agree.
Q256Chair:May I ask Ann Beasley a final question? You have a range of hugely important procurement projects that you are responsible for, and you have a new Minister, who has expressed a determination to ensure even greater private sector involvement in the delivery of MOJ services. Can you tell us if anything has changed in the way that you do your job, after the experience of this contract?
Ann Beasley: I think we have learned a number of lessons from this contract. In particular, we have made sure that we get the terminology right, so that we understand the same things as the suppliers. With the benefit of hindsight, we would have done more testing of what ALS were telling us, but we actually have some very rigorous processes for procurement activity and, depending on the value of the contracts and the inherent risks in them, we put more or less resources into play….Inevitably, with the benefit of hindsight, I would have wanted this to have had a smoother transition. I believe that it is now in a better place.
Q257Chair: Is it a good enough place now?
Ann Beasley: Not yet, no. Clearly, with hindsight, we should have invested a bit more in that transition and made it smoother.
Q270 Chair: Are you prepared to tell us how much you paid for ALS?
Andy Parker: Yes, it is on the public record. The initial figure was £6 million to the shareholders and £1.5 million to clear a loan.
Q271 Chair: What was your deal with the chief executive? You parted company pretty shortly afterwards, but what was your original deal?
Andy Parker: He had the lion’s share. I believe that it was approximately 90%, but the figure was about that. I do not know the exact number, but it was roughly 90%.
Q282Chair: But you broke the terms of that contract from day one.
Andy Parker: Yes, we did.
Q293Chair: So, you broke the terms of your contract from day one-you put unassessed, unmarked interpreters into the field.
Andy Parker: No, we do not accept that that is the case.
Q294Chair: Everybody behind you is nodding.
Andy Parker: No, we do not think that that is the case.
Q295Chair: Well, actually, the Report found that that was the case.
Sunna Van Loo: Sorry. There were unassessed and unmarked people who were attending assignments at the time. That was referred to in the NAO Report, which I think is the point you are picking up on, and it was done in agreement with the Ministry of Justice at that time.
Q296Chair: It was agreed with the Ministry of Justice that you would put in unassessed, unmarked interpreters, although in the terms of your contract you were clearly not allowed to do so?
Sunna Van Loo: That is correct, yes.
Andy Parker: There had been a number of discussions about a regional roll-out. As time went by, the belief was, particularly given the strong resistance by a lot of the interpreter bodies, that a regional roll-out would be unduly affected by a boycott of work, and that a big bang approach was the best way forward.
Q457Fiona Mactaggart: So you thought that the best way to bully the interpreters was to make all interpretation subject to this contract?
Andy Parker: That was not something on which we took a decision on our own. That was a decision that we worked on with the Ministry of Justice.
Q379Meg Hillier: Did anyone in your team have experience of running interpreting services?
Andy Parker: No.
Q392Meg Hillier: Can I ask a simple question? What do you currently pay interpreters? Is it by the hour or by the job?
Andy Parker: The interpreters get a minimum payment of one hour, depending on the tiering. The rates range from £16 for a Tier 3 to £22 for a Tier 1.
Did the MoJ fine them £11,000?
Andy Parker: I believe that at the start of the contract we were in material breach, and we were issued with a notice to improve.
Q424Mr Bacon: By the MOJ.
Andy Parker: Yes.
Q425Mr Bacon: How many notices like that have you had from the MOJ?
Andy Parker: We have had only one formal notice.
Q489Chair: How much have you been fined?
Sunna Van Loo: It is somewhere between £2,000 and £3,000.
Andy Parker: I do not believe that the MOJ ever believed we had 2,600 interpreters ready to work for us.
Q447 Mr Bacon: There is a lot of belief going on, isn’t there?
Q494Chair: But it is almost cheaper for you, isn’t it, not to deliver the service and face the fine, given the level of fines? Even now, you are not delivering 100% or 98%. You are not delivering 98%. We heard from the MOJ that a number of courts and tribunals are using their own routes to find interpreters, so you are not delivering what was in the contract. You are not delivering interpreters who are qualified and assessed. It is cheaper to do that and take the profits than to be fined, isn’t it?
Andy Parker: I do not believe that that is the case. On the basis that we only get paid by doing the work, if we do not manage to fill an interpreter, we do not get paid anything, so we do not receive-
Q495Chair: But you also do not get fined for not delivering the contract, so it is cheaper not to deliver the contract. I accept that you only get paid for what you deliver. Rather than making sure, as Meg was saying, that you pay properly to get people into courts or you do some deal with interpreters that you have failed to do for the last year that you have been running it, it is cheaper not to because there is no fining.
Andy Parker: No, because if we wilfully did not deliver, then we run the risk of having a court order against us, so I do not believe that that is the case.
This is a truly woeful story of how not to get best value from taxpayer’s money. Worse still, not a damn given about vulnerable people caught up in the Justice system being put at risk, or professional interpreters being exploited and bullied. If Capita are still not being fined, then any Wasted Costs Orders should be made in the full amount; otherwise it might just remain in their financial interest to run the risk of ‘getting away’ with under-performing by not paying interpreters properly.
Justice Minister at the time, Crispin Blunt tried to explain the problem with the contract as only a MoJ Minister could –
Some of the problems, strangely enough, came from the interpreters who, on finding that under the new payment regime they could no longer earn six-figure salaries, as they could under the previous administration, did not co-operate. They are now doing so.’
He was talking absolute unadulterated crap – but they keep blaming other people and getting away with it. Contracting, to the MoJ, in this case, was simply about putting a body between them and the ‘providers’ so that they were distanced from the cuts and the chaos. And so they could blame somebody, anybody else when it went wrong.
Talking of getting away with it, you’ll be delighted to know that Ursula Brennan, (interviewed about the contract here) who didn’t attend this session owing to a ‘misunderstanding’, was appointed Dame Commander of the Order of the Bath (DCB) in the 2013 New Year Honours, for public service.
These people have the future of the Criminal Justice System in their hands.
EDIT @ 21:45 – I just discovered this…. priceless.