In the past, the Secretary of State for Justice had an oversight role as to release of prisoners under section 35(2) of the Criminal Justice Act 1991. Long term and life prisoners could be made subject to release on licence if the Board recommended release, subject to the Secretary of State agreeing that release following consultation with the Lord Chief Justice and trial judge. This mechanism was amended following several cases, including that of Stafford v United Kingdom (46295/99), where the European Court of Human Rights held that ongoing post-minimum term detention requires determination of lawfulness by a court, in accordance with Article 5(4).
	The new measures in the Act restores oversight of the Secretary of State in the release of the most serious and dangerous offenders (the top tier), by creating the power, if the release of the prisoner would likely undermine public confidence in the parole system and there is the chance the court may not be satisfied the release test is met, to refer that case to the High Court. The High Court will then determine the release test afresh.
Legal background Secretary of State’s power to refer a case