Policy background Custodial Sentences Power to make provision for reconsideration and setting aside of Parole Board decisions
The courts have recently found that there is no power in the current legal framework for the Parole Board to re-open a case where they have made a decision, other than under the terms of the reconsideration mechanism which the Government introduced in the Parole Board Rules 2019 (SI 2019/1038). The scope of that mechanism was deliberately restrictive to ensure it was within the power set out in primary legislation to make rules. This means that there is the potential for the Secretary of State to be required by legislation to release a prisoner at the direction of the Parole Board, even where the parole decision may be based on an error of fact or law. In that situation the only recourse available is to apply to the High Court for the decision to be set aside, which is a costly and time-consuming process.
	To remedy this, section 133 provides that the rules the Secretary of State may make may confer a power on the Parole Board to set aside its own release decisions administratively on application from the Secretary of State without the need for a judicial review of the decision by the High Court.
	The reconsideration mechanism requires the Parole Board to take decisions which are provisional for 21-days, during which time a reconsideration application may be made. The power for the Board to make provisional decisions currently exists only in secondary legislation. The lawfulness of that approach was tested in the High Court and while the Government successfully defended the claim, section 133 now puts this question beyond doubt by making specific provision for the Parole Board to be able to make provisional decisions and reconsider those decisions.