Fresh from his defeat over the prisoner book ban, it looks like Chris Grayling may be about to give way on at least one aspect of his judicial review attack.
The justice secretary was handling justice questions in the Commons when Liberal Democrat MP Julian Huppert asked him about Lord Pannick's motion B1, which would retain the discretion of the courts to give permission for judicial review when it's in the public interest in all the circumstances of the case.
That basically allows judges to side-step the ban on cases where the outcome would have been the same, which basically allowed the state to break the law without consequence. It would also, at least in some cases, prevent permission stage of judicial review cases from turning into a dress rehearsal. This is useful, because it significantly reduces the financial risk for solicitors which, ultimately, will make judicial review only an option for the rich. You can get more information on how this all works here.
This very aspect of the bill drove lords to vote against the government earlier this month, when it emerged Grayling had misled the Commons by saying the courts retained discretion in exceptional circumstances.
Huppert told Grayling there was "clearly a balance to strike" and that the Pannick amendment struck a "good balance".
Grayling replied that "this is a matter I'm paying careful attention to". He added: "I'll return to the House to take matters forward".
So it looks like on the matter of the 'highly likely' test at least, we could see a concession. But a word of caution: the last time Grayling made a concession, on interveners' costs, it was arguably worse than the original proposal.
Elsewhere in the session, Grayling pledged to fix the conflict of interest problem involving the chief inspector of probation. Paul McDowell's wife is the director of a company which won the largest number of contracts to run probation services in England and Wales.
Grayling's concern about the situation is relatively recent and dates back to when she was promoted from deputy director to director. Before that, he pretended it wasn't a problem.
That's why he suddenly told the justice committee it needed to be dealt with as a matter of urgency the other day. And it's presumably why he told the Commons today that the "very recent appointment" is "clearly an issue which must be addressed".
Again – the "recent" appointment comment is utter nonsense. This was a problem before her promotion as it is now. He has known about this situation since before they submitted their bid. It is entirely disingenuous of him to now pretend it is a recent unforeseeable development.
Regardless, Grayling told the justice committee he'd have it sorted by the time the contracts are signed, which is on Thursday. The clock is ticking.
The Ministry of Justice backs down in prisoner book ban row – but refuses to ease restriction in time for Christmas.
First the good news: The Ministry of Justice is not, at the moment, going to appeal against the prisoner book ban ruling. Now the bad news: They're only prepared to ease the restriction on parcels at the start of February, because of operational reasons. In other words they don't want to have to deal with a load of parcels coming in in time for Christmas.
As one member of the legal team which won the case told me:
"Christmas is coming and books are a really useful gift to keep people motivated and let them know people care about them. Although the court found the restriction is unlawful, Grayling is insisting on maintaining it for the time being, even over the Christmas period. This shows a lack of respect for the rule of law, depriving prisoners of the ability to even receive a book at Christmas time."
If everything goes according to plan, that means parcels with books in them will be allowed in prisons from February 1st.
If Grayling had U-turned on the policy before the courts forced him to, he could have had greater control over this process. He could, for instance, have allowed parcels only from authorised book sellers. But the ruling suggests any restriction on prisoners being sent books is now unlawful, so it appears prisons will have to take parcels containing books from anyone, be it online retailers or friends and family.
Now the Ministry of Justice has been unable to control the manner in which the restriction is lifted, it finds itself facing a possible administrative nightmare if a tide of books flood in in time for Christmas. Instead of thinking that they'll work harder to be able to help prisoners receive books from friends and family, they've evidently decided to go the other way and try to sidestep the Christmas issue altogether. As a member of the legal team said, they're "bureaucratising implementation".
So that's the bad news. The good news is that the government has broken the habit of a lifetime and decided not to appeal – for now at least. Technically, they've got 21 days until after the judgement to do so.
This is surprising. Appeals are the default position of the Ministry of Justice, no matter how resounding the judgement.
The decision not to do so could have something to do with how universal the negative coverage was following the ruling. From the right wing press to the left, Grayling's prison book ban was condemned in the strongest terms. When the Daily Politics looked for someone to defend it last week, all they could find was Tory backbencher Philip Davies, who started rambling about how prisoners were using books to send each other secret messages. Perhaps that's the moment the MoJ knew the game was up.
What's remarkable is that even now, as the policy slowly wastes away, Grayling still cannot bring himself to act in a principled manner. His last decision in this debacle is to prevent prisoners being sent books in time for Christmas.
When Chris Grayling announced the sell-off of probation services, he was told it was unnecessary, dangerous and needlessly complex.
Grayling ignored the criticism and pressed ahead regardless, but ramped up the timetable so that he could get the contracts signed before the general election and prevent any future Labour government from reversing it. Today we got an initial assessment of how that process is going by Paul McDowell, the chief inspector of probation, and it appears to validate the concerns of those who had warned the justice secretary off the idea.
We need to have some caution over McDowell's reports. His wife is the deputy managing director of a private justice company which runs some UK probation services. Grayling has repeatedly defended that arrangement and there is no evidence whatsoever that McDowell would let it affect him. But it would be absurd for us to ever allow a report to proceed without mentioning this fact.
In any sane world it would be considered untenable and something would have to be done – not because there is evidence of wrongdoing, but because these reports should be above the sorts of questions we now have raise when they are released. But we do not live in that world and anyway, it's worth observing that, while it is tempered, McDowell's report is actually very critical.
Here's how Grayling broke up the probation service. The existing national body was left in charge of high risk offenders. Low-and-medium risk offenders were the responsibility of 35 probation trusts, which were really companies in public ownership until the formal sell-off. Staff were reassigned, sometimes literally by having their names picked out of a hat. When we say the process was chaotic and rushed, we understate things.
The result was predictable. "Splitting one organisation into two separate organisations had created process, communication and information-sharing challenges that did not previously exist," the inspector said, rather understatedly. "Many of those issues will remain a challenge for some time to come and need close attention."
What does this mean? The point where probation meets the courts is in a state of disarray, or as the inspector puts it, there are "significant challenges". The lack of staff at the national service, for high-risk offenders, is having "a detrimental impact on the delivery of some of the services". Given the seriousness of these offenders, this is very dangerous. Probation union Napo has already warned that one murder could have been avoided if not for the reforms.
Communication between the national body and the new organisations is falling apart. This is particularly problematic because of the risk categories. Risk is dynamic. It does not stay the same. Say you have a violent offender who was long ago charged with domestic abuse. He is currently low or medium risk. But then reports come in that he started drinking again and neighbours report loud arguments in their house. He is now high risk. It’s proper communication channels which allow us to stop that sort of violence. The idea he moves to another organisation and probation officer when these reports come in needlessly complicates things.
The IT infrastructure, as everyone predicted, is in trouble, or, as the inspector puts it, a "challenge". He adds: "The lack of integration of IT systems was frustrating." Probation workers frequently cite difficulties accessing previous information about offenders.
Probation workers are overloaded with work leaving "significant gaps, especially in court". Amusingly, this is described with the words: "Matching of staff resources to the workload has been challenging". Leadership has also been lacking and so has internal communication.
But McDowell doesn't water down his criticism for the unseemly haste with which the sell-off was conducted. He says:
"The speed of this implementation has in itself caused operational problems that could have been avoided or mitigated. We sometimes found that new processes were being communicated by email to staff for implementation the next day, with little or no time for training or instruction. It is important to recognise the impact that this has had on staff morale, and potentially on the efficiency of the service they were providing."
What's really irritating is that the speed was political. It was done this way to prevent Labour reversing it.
In probation, errors cost lives. The understated nature of the report prevents it coming across as too damning. But for a justice secretary to have approached this task with anything other than supreme delicacy is deeply concerning. We’ve yet to see if Grayling's reforms will be as bad as the unions have suggested. But the early indicators do not look good.
Update: 14:38 GMT
Shadow justice secretary Sadiq Khan commented:
"David Cameron's government is just days away from signing over to private companies the supervision of serious and violent offenders. Yet today's report is a stark warning, confirming the almighty mess caused by this government's reckless and half-baked privatisation. The catalogue of errors is scary, with failing IT and rock-bottom staff morale hampering the ability of probation to keep the public safe. Coming in for particular criticism is the speed at which ministers have chosen to rush ahead with their cack-handed privatisation, all done to a political timetable and nothing whatsoever about what's in the best interests of public safety. Time and again Chris Grayling was warned by experts, staff and Labour that his untested and untried gamble would lead to chaos, but he buried his head in the sand. There's still time for ministers to admit this is all a terrible mistake and abandon their reckless privatisation."