Northern Ireland coronavirus restrictions: Why Health Minister Swann can't act

By James McNaney

Is there a “real prospect” of coronavirus restrictions staying in place or is there “no suggestion” that they have to?

Those are the competing views of Sinn Fein vice president Michelle O’Neill and DUP leader Sir Jeffrey Donaldson.

On Thursday evening, Health Minister Robin Swann announced that he had received legal advice on whether he could lift the remaining restrictions without a fully functioning Executive.

It advised he could not act unilaterally given the cross-cutting nature of some of the measures.

He had indicated earlier this week that he would lift most if not all of the remaining restrictions if he was given the legal go-ahead by advisors. 

Robin Swann wasn’t able to make such an announcement, however, stating simply: "This advice is now being given careful consideration and it is my intention to engage with ministerial colleagues."

Why can’t the health minister move immediately to lift the restrictions? Why do the leaders of NI’s two top parties have differing views on whether he can? Read this UTV explainer to find out more. 

What does a minister need to make decisions? 

Ministers are in charge of government departments, but they don’t get to just do as they wish in them. For every decision a minister makes, there needs to be a solid legal justification for doing so. 

The powers of every minister are set out in law. If a minister does something that they are not legally empowered to do they are said to have acted ultra vires, or beyond their powers. A minister who does so can be taken to court and have their decision overturned.

Before taking major actions, it’s very common for members of government to speak to lawyers in order to find out if they have the authority to make such a decision. That’s exactly what Robin Swann has been doing this week. 

But he’s the health minister, surely he has the power to make decisions about coronavirus?

The Department of Health is in charge of managing Northern Ireland’s response to the pandemic, but the health minister can’t just take any decision he wants to when it comes to coronavirus. 

Northern Ireland has a form of collective and cabinet government. This means that power and authority belong to the Executive in general and not to any one minister in particular. 

If a department needs more money allocated to it, or a decision of one minister impacts other ministers’ departments or a decision is going to have a polarising or deep impact on society then the minister must get approval from the entire Executive. These types of decisions are said to be significant, controversial or cross-cutting.

An issue like coronavirus restrictions has a huge impact right across Northern Irish society. Mask-wearing and vaccine passports impact businesses (Department for the Economy), restrictions need to be enforced by the police (Department of Justice), and money for all the extra costs incurred by the virus needs to be financed by someone (Department of Finance).

Because of this, decisions on coronavirus restrictions have always been made by the Executive collectively.  

Doing so became more complicated last week when the Executive was partially collapsed by the withdrawal of the first minister.

Do we currently have an Executive that can make these kinds of decisions?

We’ve been through Assembly collapses before, but this one is slightly different. Beforehand, if the first and deputy first ministers’ office wasn’t filled, then the Executive couldn’t sit. 

Because of changes to the law under New Decade, New Approach, and a bill passed by Westminster at the start of this week, the Assembly and the Executive can continue in a “shadow form” for a period. 

This means that the current government ministers can stay in place, however, they cannot take the sorts of major decisions that typically require the whole Executive to sign off on.

So the health minister was told by his legal advice that he doesn’t have the power to remove the restrictions by himself?

Here’s where the disagreement comes in. The minister has received legal advice, but the parties each have a different interpretation of the meaning of that advice. 

Attorney General Brenda King was asked to provide Robin Swann with advice on whether he could move to lift restrictions on his own. He was advised that he needs Executive approval before he lifts some of the restrictions because they are cross cutting.

Robin Swann has written a letter to his Executive colleagues explaining that he may only have the authority to “amend some, but not all of the restrictions". This is because the decision may fall into the three categories discussed above, and therefore require approval from a full Executive that does not exist.

This has led to Sinn Fein’s Michelle O’Neill warning that there is a “real prospect” of restrictions remaining. She believes that without the full Executive, Robin Swann might not have the legal authority to act. This is her basis for blaming the DUP, who took the decision to withdraw Paul Givan as First Minister.

The DUP understands the legal advice differently. They believe that Robin Swann needs only to consult his Executive colleagues, which he is still quite able to do with the “Shadow” Executive. 

Laws are all-important when it comes to Ministers making decisions, but how they are interpreted is influenced by the interests of political parties. 

The DUP have an interest in minimising the impact of their actions, and the other parties have an interest in emphasising them.

We’ll have to wait to see the outcome of this latest round of politicised legal debate.