3. Submissions by Mr Friedman

Mr Friedman: Good afternoon, my Lady. I hope you can see me.

Baroness Hallett: I can, thank you very much, Mr Friedman.

Mr Friedman: We act, I think as you know, for Disability Action Northern Ireland and they are also making their first appearance in the module.

We are grateful to Ms Dobbin KC and her team for the way they have updated on matters this afternoon and, in particular, the way she has engaged with our clients provisional highlighting of their issues.

We emphasised to you this morning disabled people’s triple jeopardy during Covid, their far more fatal Covid outcomes, their cutoff from other acute healthcare and the disproportionate impact of lockdowns and related measures upon them.

The triple jeopardy profoundly affected the 1 in 5 people of Northern Ireland, and according to the latest census, moving to 1 in 4, who are disabled but includes that during 2020 they were 48 per cent more likely to die of Covid and 40 per cent more likely to die of non-Covid causes than non-disabled peers. In addition, there are those unique features of Northern Ireland, including the suspension of devolved power from January 2017 to January 2020 and the resumption of devolved power in the first crisis period of the pandemic response in 2020, only to collapse again in February 2022, of course all pretty much within the timeline of your Inquiry.

The effect on disabled people of having no Executive for long periods has been the issues that can take years to gain traction with a functioning government were without anyone to properly engage with. As Disability Action has written:

“Policy decisions relating to disabled people’s lives were left in the hands of local civil servants, who, in the absence of ministerial authorisation, often felt powerless to act. Meanwhile, politicians in Westminster grappling with Brexit and a myriad of other ‘bigger’ issues seemed entirely removed from addressing the challenges disabled people and their families in Northern Ireland were facing.

“During the pandemic, disabled people’s situation continued to be complicated by such ‘bigger’ issues, including the political differences within the power sharing arrangements. A direct consequence of the collapse of the Executive in 2022 is that an ongoing commitment to produce a disability strategy as part of the programme for government that was agreed to in January 2020 has not been realised. That is despite a commissioned expert panel report advising the Department of Communities on how to do so being completed now some two and a half years ago.”

In all the circumstances, Geraldine McGahey, as the Chief Commissioner of the Equality Commission for Northern Ireland warned in October 2021, that political disagreements and a fixation on what she called the “orange and green issues”, has resulted in a two-decade long failure to enhance legal protections for minority groups and she consequently describes equality protection in Northern Ireland as comparatively in the dark ages.

For the purpose of Module 2C, the Inquiry will need to consider whether the post-conflict preoccupation of maintaining the political equality between the power sharing parties, especially in the context of Brexit adversely affected the protection of minority groups, during the course of Covid decision making, including, for the reasons introduced today, disabled people.

In urging my Lady to incorporate human rights analysis into your investigative toolkit, it is right to identify what makes the Northern Ireland approach distinct. We mention four matters relevant to disabled people but also other minorities.

First, Northern Ireland has a discreet architecture and culture of human rights that is tied to its existence and wellbeing as a post-conflict society. It runs through the special focus on human rights in Northern Ireland contained in the Good Friday Agreement in 1998, which affirms commitment to “the right to equally opportunity to all social and economic activity regardless of class, creed, disability, gender or ethnicity”, and commits to the creation of statutory duties and oversight mechanisms. Those mechanisms are realised in part 7 of the Northern Ireland Act 1998. They are expressly protected by the so-called No Diminution of Rights principle, contained in Article 2 of the 2019 Northern Ireland Protocol that has not been changed by the recent Windsor framework.

The Northern Ireland Office Outcome Delivery Plan for 2021/2022 consequently includes in outcome 6 of its equality objectives to:

“… ensure compliance with UK public sector equality duty and section 75 requirements of the Northern Ireland Act contribute to reserve human rights work including treaty body requirements, sponsor the new Northern Ireland Human Rights Commission and ensure implementation of the No Diminution of Rights principle in the Northern Ireland protocol.”

Second, notwithstanding this commitment to human rights work, including treaty body requirements, the Northern Ireland Government, unlike Scotland and Wales has no clear plans to implement the UN Convention on the Rights of Persons with Disabilities. It is one of the casualties of the absence of devolved government that the plan to get a plan stalled. Of particular significance to Module 2C will be the criticism by the UN Committee on Rights of person with Disabilities in 2017 of the ill-preparedness to protect disabled people in the event of an emergency, which combined with austerity measures which had the effect of stripping people of the assets required to be resilient in the face of emergency have had their consequence.

While none of the four nations fare well on this, Northern Ireland lacked the devolved government when engagement with the UN Committee’s criticisms could have led to meaningful planning.

Thirdly, equal opportunities and discrimination as transferred matters under the Northern Ireland Act, which is not the case with Wales and Scotland, are a discrete issue. As such, with few exceptions, the Equality Act 2010, as you have heard, does not form part of the law of Northern Ireland, rather the Disability Discrimination Act of 1995 remains in force.

Fourthly, Northern Ireland therefore does not have the equivalent of section 1 of the Equality Act 2010 to bring into force even if it wanted to. Public authorities in Northern Ireland have to comply with section 75 of the Northern Ireland Act which requires them to have due regard to the need to promote equality of opportunity between various groups, including those with and without disabilities.

There is an ongoing debate in Northern Ireland, seemingly blocked by repeated suspension of devolved government, as to whether those provisions should be replaced by a structure more akin to the Equality Act 2010, as applies to the rest of the UK. There is also some suggestion, no doubt to be examined with witnesses, that intersectional thinking is relatively underdeveloped in Northern Ireland.

Overall, my Lady, if the stalling of the political process has stalled engagement with structural discrimination against disabled people generally, then, as Disability Action Northern Ireland discovered in its survey of 404 people, including 1,300 written submissions, the situation after March 2020 served to “reveal the fragility of independence of disabled people and raised questions about the strength of disability rights in the face of such a crisis”. As the organisation put it in September 2020 in their report on the Impact of Covid-19 on the People of Northern Ireland, what became very clear, they say, was the feeling of many disabled people that their voices were being lost in the noise or were simply ignored in the confusion and panic that was unfolding.

We have addressed in the Module 2 and the earlier submodule hearings various matters about how expertise and experts might be viewed from the point of view of disabled people’s organisations. For Northern Ireland, may we add the following:

First, Disability Action found minimal consultation with disabled people’s organisations in Northern Ireland in Covid decision making and its conclusions are confirmed by the independent panel of experts that described consultation as too often tokenistic.

Second, in so much as disabled people’s organisations can and should assist the Inquiry as experts, then Disability Action are such an organisation. The reports they were commissioned to write or have otherwise cited make them well placed to explain what they have described as the tension in the approach of protecting vulnerable people during the Covid-19 crisis, whilst at the same time removing services for vulnerable people which had a detrimental impact upon their physical and mental health.

Third, and by way of observation on the presently instructed experts, we support what other CPs have said in this hearing and the hearing for Wales this morning as to whether the forthcoming reports will need to be supplemented by devolved power experts for those discrete nations, and we have heard Ms Dobbin explain she wants to reflect on that and invites our reflection along with her.

For Northern Ireland, there are undoubted idiosyncrasies relevant to comprehending its policy formation, including, as you have just heard, its cross-border dimensions. They includes the administrative and healthcare connections with the Republic of Ireland and how the big issue, post-conflict politics, effectively crowds out other social issues.

Other variable local nuances concern data collection and its gaps and disaster preparation and resilience for a pandemic, especially for disabled people, in a jurisdiction which has been particularly braced for other types of emergency and disaster through its troubled years and peaceful ones, but was not prepared for an emergency of this nature.

Fourthly, on structural discrimination, in my Lady’s ruling on a group of experts, can I mention the word “vulnerable”. Ms Dobbin rightly notes that it will have to be used from time to time when referring to things like shielding and the “clinically vulnerable” but we appreciate that she is also aware of the complexities of the term. Like the rest of the UK, Covid decision making and its framework relied heavily on the division between the labelled “vulnerable”, there to be distinguished for various reasons from everyone else. That policy framework, casting the non-vulnerable as sacrificing for the vulnerable did not work to save disabled people from Covid’s triple jeopardy. It has also served to avoid sufficient thought about underlying social inequalities deflecting attention away from the administrative arrangements and systems that distribute disadvantage across people and groups.

We therefore submit that in its instruction of experts and questioning of witnesses, the Inquiry will want to understand how disabled people as a category and in parallel with others, were rendered vulnerable when denied the resources and assets to absorb the Covid emergency with resilience in the manner that I mentioned this morning.

My Lady, finally and on the procedural issues that concern all of your modules 2 and 2A to 2C, we do not repeat what we have said in writing and orally previously. Thank you for allowing us in these public preliminary hearings to introduce perspectives and sources that our client has reason to know will assist you and your team to prepare the next stages of this Inquiry with disabled people’s situation in mind.

It is also important for disabled members of the public to hear these matters introduced into a public forum which they are often not and, for allowing that, our thanks are also due.

My Lady, those are our submissions.

Baroness Hallett: Mr Friedman, thank you very much and those whom you represent. As I said this morning you, raise some extremely important and serious points and they are ones that we will bearing very much in mind and we shall welcome the assistance that your lay clients can provide. So thank you again.

Mr Jacobs for the TUC and the Northern Ireland TUC.