By Joshua.Chambers

22 Feb 2013

In 2010, the Ministry of Justice outsourced its courts translation work – but the contractor struggled, and the system ground to a halt. As the probation outsourcing looms, Joshua Chambers looks at the lessons to be learned.

Bulgarian burglars and Venezuelan victims of crime might not speak the best English but, like anybody facing a British court, they are entitled to understand the proceedings and to be understood. That’s why HM Courts and Tribunals Service (HMCTS) hires specialist interpreters, speaking everything from Swahili to Spanish, to ensure that everyone gets an equal hearing. However, two years ago, the Ministry of Justice (MoJ) outsourced its interpreting and translating services in a contract that MPs this month described as “shambolic”. Although things are now improving, the operation of the courts suffered – and there are broader lessons to be learned by those across Whitehall who are involved in the move to commission out more public services.

Two parliamentary committees have reported on the problems with the MoJ’s outsourcing scheme: the Public Accounts Committee (PAC) late last year and, earlier this month, the Commons’ Justice Committee. Meanwhile, last September the National Audit Office published its own in-depth analysis.

Before the reforms, interpreters were called in directly by courts, police forces and other criminal justice agencies. They were paid locally, but a fee structure and registration system was set nationally. The new system put a private sector contractor, ALS, in charge – and with all calls being routed through the company, things quickly began to wrong.

The Justice Committee’s report says that the MoJ “did not have a sufficient understanding of the complexities of court interpreting work”, and that this problem was compounded by insufficient consultation with interpreters. Geoffrey Buckingham, chairman of the Association of Police and Court Interpreters, says “the starting point is the failure of the MoJ to properly consult with interpreters and their representatives”.

Hence, the MoJ didn’t have a full understanding of the existing system when it moved to a tiered system that grades interpreters and means less qualified people can take on some of the work previously performed by registered translators. “The problem with [the tiered system] is nobody understands what it is, how it works, and who’s in what tiers,” says Buckingham. “It’s a stupid idea where, ostensibly for types of less-important case, you can call somebody with lower qualifications.”

Interpreters were clearly unhappy with the change, as they were with the accompanying pay cuts. “Looking at the framework agreement, pay was going to be very substantially reduced and we knew people couldn’t afford to work for that sort of money,” Buckingham says. Indeed, as the Justice Committee notes, the new system makes most of its savings by cutting wages rather than bureaucracy or duplication.

The MoJ did consult with other staff such as police and magistrates; but the Justice Committee says the resultant changes were “not extensive”. Tom Gash, an Institute for Government programme director, says the contract’s problems demonstrate the need to “take seriously the views across the system” before finalising plans. “Consultation processes can sometimes fall into paper-based exercises that people largely ignore,” he says, but they should be about “genuine engagement”.

The Justice Committee also charges the MoJ with failing to conduct proper due diligence on its chosen supplier. “The whole contract was a mess,” says Sir Alan Beith, the committee’s chairman. ALS was a regional company, but the MoJ wanted to give it a national contract – so the department ignored a report which indicated that it should only give ALS contracts worth up to £1m, instead pledging it work worth £42m. “When you’re contracting with an organisation, you need to be confident that it’s got the ability to deliver a service,” Gash says. ALS had a good regional reputation but “rolling a service out across the country is tricky, and you wouldn’t expect good service straight away”.

Peter Handcock, chief executive of the HMCTS, told PAC last year “there is no doubt that, with the benefit of hindsight, we would look at the due diligence we did on this contract in a completely different way, and we would test it a bit more thoroughly”.

Problems with the outsourcing were compounded by two factors. First, the MoJ decided not to pilot the programme. Second, the department didn’t penalise the contractor as soon as things started going wrong; the PAC report notes that “risible levels of penalties and low expectations of performance allow private companies to get away with over-promising and under-delivering”.

Certainly, ALS under-delivered. The new system ran into immediate difficulties when professional interpreters, who were seriously unhappy with the new system, boycotted it. It then juddered to a halt: courts couldn’t find sufficient trained interpreters; people were held unnecessarily in prison cells because they couldn’t be tried; and costs escalated in the justice system. One court in Ipswich even turned to ‘Google Translate’.

Since then “performance has undoubtedly improved markedly”, the Justice Committee notes, “but this has taken a long time to achieve”. Nor are things perfect: although ALS was taken over by Capita, a much larger provider, the system is yet to meet the full demands of the HMCTS and courts are still sourcing some interpreters themselves.

Responding to the Justice Committee report, justice minister Helen Grant said that “there were significant issues at the start of the contract in early 2012 but we took swift and robust action and have seen dramatic improvements, as the Justice Select Committee highlights. The vast majority of interpreter bookings are now being completed and complaints have fallen considerably. The changes we have made have led to major savings for taxpayers, totalling £15m in the first year, and we continue to monitor the contract on a daily basis and demand continuing progress”.

Under the contract’s penalty clauses, Capita is now paying the additional bills created by its inability to supply interpreters – such as extra prosecution and defence costs. This means that the MoJ gets its £15m, but the Justice Committee notes that “there may be future ramifications for the department when it comes to recommissioning interpreting and translation services if these financial issues are not resolved”. The committee is also unhappy with the MoJ because it feels its investigations were obstructed. It asked frontline staff to contribute to its inquiry, but the MoJ refused to provide it with contact details and issued an edict instructing staff not to participate. Grant told the committee that under the Osmotherly Rules, “officials should not take part in research projects or surveys designed to establish their personal views on government policies”. However, the committee believes this “may have constituted contempt” of Parliament, and Beith says he wants the Commons to assess this when it debates Parliamentary Privilege.

So what lessons could other departments learn from this rather ramshackle example of outsourcing? Beith says civil servants clearly need more training in commissioning – particularly those without any experience in the field. Gash adds that “as outsourcing goes nearer to the heart of public service delivery, getting these sorts of things right becomes more important, and there’s a big question to ask government about whether, given the scale of the ambition around outsourcing and the use of market mechanisms in public services, there’s enough being done to build the flexibility and capacity of the civil service and local commissioners”. Last month, Cabinet Office minister Francis Maude announced the launch of a Commissioning Academy to train public servants in outcome-based commissioning, market engagement and development, and joint commissioning across organisational boundaries. Gash believes this will help.

However, Labour’s shadow justice minister Andy Slaughter identifies bigger problems in the way the civil service handles such projects. “Quite senior civil servants had not properly scrutinised what’s happening, did not sign off on contracts, and that’s clearly wrong,” he says. “Having said that: the buck has to stop with ministers, because their unrealistic timetables and financial targets led to this happening.” Meanwhile, Gash says that civil servants shouldn’t always choose the cheapest options: “This is a symptom of the times, where there is a lot of pressure on budgets, and people are tempted to go for low-cost options, which don’t always provide good value for money. You have to be careful of what the risks are.”

In Whitehall terms, this was a fairly small contract – but the MoJ is embarking on a much larger outsourcing project: sourcing some probation and rehabilitation services via the market by 2015. If it again fails to ensure it understands the system; to properly consult and react to the answers it receives; to pilot its approach properly; and to conduct due diligence on its preferred providers – well, then it may find that it has a far bigger and more costly outsourcing disaster on its hands.

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