3. Submissions on Behalf of Disability Action Northern Ireland by Mr Friedman KC

Mr Friedman: We act for Disability Action Northern Ireland, which is a disabled people’s organisation, or DPO, run by and for disabled people.

My Lady, disabled people in Northern Ireland make up one in four of the population. They have physical and mental impairments, both visible and non-visible, that arise in the ordinary diversity of human existence, but disabled people in Northern Ireland are also disabled due to the harm caused by its still recent history of conflict.

Despite the integral relevance of disabled people to the fabric of society, Northern Ireland relied on the UK to count the deaths of its disabled people during the Covid-19 pandemic, as it lacked real-time data on the subject. In England, mortality figures for disabled people were published in June 2020. Northern Ireland had to wait until December 2021; only then did it discover that between March and September 2020 disabled people were 40% more likely to die of non-Covid causes, and 48% more likely to die of Covid, than non-disabled peers.

5,000 people died in Northern Ireland over some 20 months of the pandemic. That is a shattering loss to a society of only 1.8 million people, especially where available funding and infrastructure should have enabled a better level of population surveillance and service delivery, but it is also shattering because those deaths occurred in a place in these isles where the injustice of preventable lost lives bears very profound importance.

If people are disabled, not by physical or mental impairments, but by the social attitude and barriers they face in consequence of those impairments, then the politics of Northern Ireland, still too much defined by sectarian identity, is a socially disabling attitude and barrier in its own right. It does not allow for the human rights and equality of disabled people to be accounted for as much as they should be. It does not allow disabled people’s perspective to be heard and seen as much as it must.

In an Inquiry module concerned with political and administrative decision-making, in a polity that because of its history and constitutional arrangements can find decision-making difficult, our client is here to say that in Northern Ireland disabled people count too.

Starting with context, we make five points.

First, even in normal times, let alone pandemic emergency, government was unstable. In fact, nearly 45% of the period since 1998, the people of Northern Ireland had not been politically governed by democratically accountable politicians; instead, they have been administratively governed by reluctant civil servants, whose powers are limited to maintaining services and institutions and not evolving them.

Second, and as a consequence, governance was damaged. Brenda Doherty of the Covid Bereaved Families, has rightly pointed to a vacuum in governance. For disabled people, the vacuum meant that various initiatives to achieve greater equality in human rights have remained stuck, with each collapse of government effectively requiring the work to be started again.

Third, resilience was compromised. In May 2020 the Health Minister, Robin Swann, made a speech reflecting that the political system in Northern Ireland had to look with humility at how it had undermined state capacity to cope with the pandemic. If there is soul searching to do, then the terrible exposure of the health and care system is where the searching must start. These are weaknesses that that have been factored into resilience planning but were not. For disabled people, they underscore that the system of government was vulnerable and not them.

Fourth, disabled people were peripheral, by which we mean that in Northern Ireland, as across the UK, disabled people faced pre-pandemic structural discrimination from both state and wider society, but we are saying more, that the 1998 settlement has frustrated the civil rights of disabled people, that in a very real sense they are not seen and not heard because other networks and communities enjoy a special political status, and if disabled people cannot use those networks, their issues do not count as others do.

Fifth, in this context, human rights are essential, but it is important to underscore the contradictions. On the one hand, human rights are integral to the peace process, they are written into the Good Friday Agreement, the Northern Ireland Act and the Northern Ireland Protocol. On the other hand, Northern Ireland does not enjoy a progressive human rights culture. Disabled people are not protected as they would be under the Equality Act 2010. The United Nations Convention on the Rights of Persons with Disabilities is hardly recognised or implemented in Northern Ireland at all. The social model of disability, ascribing disability to social forces rather than individual medical deficits, forms no part of policy. The state’s discharge of positive obligations of consultation, data collection and emergency planning in accordance with the rights of disabled people is minimal.

Turning then to pandemic decision-making, it is undeniable that renewed ministerial government after three years of no governing and with many novice ministers was not sufficiently robust or integrated to deal with a crisis of this kind. The deeper structural problem is that this is not a system of government capable of delivering anything other than lowest common denominator policies and decisions. That is because a five party forced coalition of ministers determined and dominated by Unionist/Republican divisions cannot agree on anything else.

For all the bureaucratic challenges that the Inquiry has seen elsewhere, in Belfast you will study a Civil Service that at the best of times acts as a broker and mediator rather than a policy builder and which was found by the Renewable Heat Incentive Inquiry Report in March 2020 to be seriously incompetent at delivering “novel, technically complex and potentially volatile” projects, not least due to “lack of resources and of people with the specialist skills to ensure that the scheme was robustly designed and monitored”.

Those findings are relevant to this Inquiry, because where such shortcomings really mattered was in complex projects of emergency response, and we know from the disclosure, for instance, that the civil contingency arrangements had not been properly renewed for 20 years.

All of this led to a failure of surge preparedness across all public authorities. Until well into March 2020 the virus was treated as a public health threat with work essentially limited to the Department of Health. This confinement of the crisis to the health portfolio was all the more problematic because Northern Ireland has a department led machinery of government, there is no Cabinet government, it is silosation by design.

Those constitutional arrangements had direct implications for disabled people, because there was insufficient planning, structures or expertise to consider the disabling effects of the virus and its countermeasures. The Department of Health emergency response strategy of 30 March had no workstream on social vulnerability. Its strategic aim 7 was titled “Wider health/economic impact of control measures”, but there was no mention of anything to do with disabled people. The Executive Office’s six workstreams had only a broad heading of “3. Societal and community wellbeing”. As far as we can see, there was never a dedicated ministerial meeting on disabled people, the Department for Communities’ awaited disability strategy promised for 2021 remained and remains unpublished.

Both of the government’s experts say that non-medical issues were not looked at as much as health related ones, no minister properly led on disabled people’s issues, the Executive Office that had responsibility for equality as well as ministers in other departments all agree that there was never the sufficient focus on vulnerable groups that there should have been.

The result is that disabled people ended up being lost in pandemic decision-making, including the expert advice it relied upon. It was grounded in a standard medical model, to which other public authorities in the system were apt to adhere.

That is what Disability Action 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.

They add, on the basis of their pandemic survey of some 1,700 people and connection to 300 local DPOs in Northern Ireland, that what became very clear was the feeling of many disabled people that their voices were being lost in the noise or, worse, simply ignored in the confusion and panic that was unfolding.

This isolation of disabled people was compounded by being denied very basic participation in government decision-making. It cannot be emphasised enough how tokenistic the engagement with disabled people was in its own right and when compared to the rest of the UK, especially the smaller nations.

In Northern Ireland, co-production and co-design are just words. The anomaly here is that in politics and related religious and cultural identity, Northern Ireland is a place of extensive community networks which in their interaction with the state have ultimately delivered and maintained peace. However, the monopoly of those networks is such that they block other networks and voices. The outcome is that the dignity and wellbeing of disabled people and other minorities cannot yet enjoy equal acknowledgement and participation in the post conflict political landscape.

The anomaly continues when it comes to data. For a nation blighted by profound structural discrimination in its recent past, Northern Ireland is unacceptably bad at collecting and using data. There were fundamental gaps in health and social care data, deaths were not properly counted in real time. There was inability to disaggregate data by all nine of the equality categories. There were then, as now, no published statistics detailing the number of disabled people resident in care homes. There has been no specific government piece of research investigating the impact of the pandemic on those living with disabilities. Improvement in data collection, distribution and analysis is characterised by the Northern Ireland Equality Commission as of itself a fundamental issue of equality. It is a post conflict enigma that the Northern Irish state should be so disinterested in this issue.

The consequence of siloed health department government, lack of meaningful engagement and poverty of data is that protection of disabled people during the pandemic was flawed. That was especially so with regard to shielding letters, access to food, inclusive communication, and with failure at executive level to render the issuing of DNR notices the withdrawing of social care sufficiently accountable.

The incapacity of Northern Irish government to properly take into account disabled people extended to Covid economics. Yes, funds were released from April 2020 to assist delivery of services and support to individuals at grassroots level. However, the criteria and method of redistribution are unclear. Without the proper funding of DPO to ensure co-production of policy and pandemic preparation, and without the involvement of disabled people in economic planning, any emergency financial response was bound to be reactive and protect the status quo. That was the case across the UK. But in Northern Ireland the situation was aggravated by DPO not being sufficiently mainstreamed into the community pipelines to which such funding was released.

My Lady, going into the last of your government modules, the DPO are compelled to tell you that this is the place in the UK where, in many ways, disabled people are the most marginalised. There was no effective social partnership between the state and disabled people. Policy drives that take years to gain traction with any government have necessarily run aground incessantly.

Geraldine McGahey, the chief equality commissioner, said in 2021 that equality protection in Northern Ireland is in the “dark ages”, in part because sectarian disputes have continued to dominate all else.

Like others, we do not come to these hearings to criticise what power-sharing has done to end violence, but it has not yet led to genuine pluralist politics or effective government. When the state’s deep lack of resilience was exposed in a pandemic, it ended up violating the lives and wellbeing of disabled people. Not for the first time in British or Irish history, the failures of state therefore raise fundamental issues of humanity. In the unique and evolving context of post-conflict politics, it is important to ensure that the vulnerability of the Northern Ireland system is made sufficiently accountable and understood, and that the Inquiry plays its part in exploring the possibilities of greater resilience and wellbeing of all of the people of this place into their futures.

Thank you, my Lady.

Lady Hallett: Very grateful, Mr Friedman, thank you very much.

Mr Jacobs, are you next?