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

Mr Friedman: My Lady, we act for Disability Action Northern Ireland. It is a disabled people’s organisation, or DPO, run by and for disabled people, and we want to thank you and Ms Dobbin and her team for all the work you’ve done here.

Given everything you have heard about the admitted extent to which disabled people were overlooked during the pandemic response, it’s important to recall some basic features of the civil rights of disabled people that do not yet have a home in Northern Ireland.

As my Lady, knows, DPOs are to be distinguished from charities and other organisations that represent disabled people rather than enabling them to represent themselves. DPOs take issue with the feature of pandemic policy, however well intentioned, which focused on the vulnerable without consulting disabled people because in practice it enabled disabled people to be lost even when decision-makers believed that they were being seen.

That is a societal problem beyond Northern Ireland. Normal personhood is assumed to be autonomous, independent, and self-sufficient. Disabled people are treated as other, charitable objects, and recipients of a narrow concept of care. This notion of vulnerability is prone to be highly transactional, hence in pandemic crisis all of the four nation governments, including this one, focused on getting benefits paid, setting up telephone lines, sending letters to people who were on lists and creating hit and miss food parcel distribution.

DPOs take issue with the label of the vulnerable because it detracts from the requirement to create systems that are more responsive to the plurality of the human condition and the value of our relationships. We are all vulnerable at times, but it is systems of political and economic asset distribution that make some of us more vulnerable than others.

Which brings us to Northern Ireland. This is a place where the moral convictions of politicians are strong, and the connection to their constituencies is particularly embedded. The narratives that guide them and the prisms through which they see the world are specific and at times fundamentally incompatible with those they now sit alongside. But in their own way, each of the witnesses you heard genuinely struggled with the moral dilemmas of the pandemic’s wicked choices.

We mention those features because it is a puzzle that in a place of such orientation towards its communities, where legal organisations, universities and civil society groups have striven to engage with the possibilities of human connection in spite of conflict and dissent, that Northern Ireland failed to deal more effectively with this crisis and particularly failed to be more inclusive in its recognition and protection of disabled people.

As to why that was so, the DPO offer the following answers: first, a basic feature of government should be the ability to respond to emergency, but in Northern Ireland civil contingency organisation was weak, even in the context of the problems of disaster management across the UK. This Inquiry has laid bare that the Civil Contingencies Act 2004 creates only superficial duties on local government and blue light responders, but no duties on central government and no mechanism to audit local readiness. It left the state unconscionably unprepared for a pandemic. Further, until lessons learned after the 2017 Grenfell Tower fire, that system was starkly lacking in human-centred focus and was distant from the needs of ordinary people.

In Northern Ireland, the legal framework is even lighter. Only the PSNI and the Maritime and Coastguard Agency are statutory responders. Neither the Executive Office, the Department of Health or local government are subject to enforceable duties. The evidence makes clear that the whole so-called system resided in a civil contingency framework last updated in 2011 that neither compelled planning nor checked it. Its governmental home was an understaffed and underskilled policy branch in the Executive Office, with no hard power to compel other departments to do anything.

In this situation, people like Karen Pearson had little option but to take the Operation Yellowhammer no-deal Brexit planning and apply it to a whole-society humanitarian Covid crisis. The foundational Executive steps, including Pearson’s paper on 19 March 2020, were not organised around human-centredness at all. They concerned maintaining the movement of people and things. They used the civil contingency language of business continuity and sectors, which does not fit easily with socially marginalised parts of the population.

Yellowhammer was a bad fit for Covid. There is no poor people’s sector or disabled people’s sector, and when the notion of sector was used in this context, it essentially meant the traditional charities focused on clinical vulnerability and underscoring the medical model of disability. Hence the single dedicated ministerial meeting with equality groups during the first six months of the pandemic was with a group of local charities concerned with shielding. That was on 15 July 2020, and attendees included the British Heart Foundation, Macmillan Cancer Trust and Action on Mental Health.

The stakeholders brought together by the Executive Covid Taskforce after December 2020 combined the business sector, faith leaders and somewhat random groupings around sport, marching bands, transport and freight. All of these organisations are relevant actors in social partnership in a pandemic, but they cannot provide for disabled people’s perspective or lay claim to disabled people’s rights.

The second reason why Covid decision-making floundered for disabled people in Northern Ireland lies in the deliberate design of its constitutional arrangements that have produced peace but are yet to produce good government.

Everything that my Lady has learned, across all four of the government decision-making modules indicates that this is a structure that will definitely not serve socially marginalised groups and especially disabled people, however much the governments actually want to do so.

There needs to be a lead department and department focus on disabled people, but the formation and delivery of policy has to work across multiple departments in health, communities, education and finance. Until Northern Ireland has that capacity for joined up government, it is destined as a state to be stuck with barriers and attitudes that work against disabled people, as turned out to be the case here.

Starting with the centre of government, from the Executive Office disclosure and admissions of individual witnesses we can see that Nuala Toman’s critique that disabled people were largely invisible during Covid decision-making and their voices unheard, is a literal statement of events. It is a step towards change that witnesses across the political and Civil Service establishment were all so emphatic in their evidence that oversight of disabled people and other marginalised groups was a key failing, but anyone who seeks to console themselves that this was due to the pressures of time and uniqueness of the crisis is still not getting the problem.

As time passed during 2020, organisations in other parts of the UK and Northern Ireland produced key reports on the disproportionate impact of the pandemic and countermeasures on disabled people.

My Lady, these reports, including the work done by Disability Action, sponsored by the Northern Ireland Equality Commission, simply did not register at Executive Office level, and made no impact at all on any cross-government strategy.

The establishment of the Executive taskforce ought to have provided correction, but it did not. Disabled people were not mentioned at all in its Moving Forward strategy, published in March 2021, and disability is mentioned only once in its Covid recovery plan of August 2021 with regard to improving skills to advance employment.

The Inquiry has spent time establishing how cross-government strategy was delayed in starting. For disabled people during the pandemic, it never began.

My Lady, in all other jurisdictions you have studied, the need to take steps to immediately locate planning at the centre of the Executive and integrate health department leadership into a broader whole-society government response was taken as axiomatic, but in Northern Ireland it was a problem.

It is difficult to understand the tensions between the Department of Health and the rest of the government without understanding the reasonable apprehension in Northern Ireland that if you allow Executive Committee control over decision-making, it will likely run aground due to political disagreement, and so hoarding power in the Health Department was seen as the least worst choice to make Covid political decision-making viable.

But the Department of Health, as Robin Swann accepted, left its nation in a state of serious risk, because it did not ring the alarm bell early or loud enough to prompt ministerial colleagues to stand up whole-society preparedness.

Not only was there a lack of communication with other departments and the Executive Office, but within the department itself. Mr Swann was not aware of advice given by his own departmental officials in February 2020 regarding the standing up of NICCMA or of the contents of letters sent out from the Department of Health signed off by the CMO.

The deeper flaw, however, lies in the state of post-conflict politics and political institutions, and disabled people were failed by both. Historic party political narratives and perspectives still held their clutch, even at the expense of available evidence, and at key moments within this crisis they came to the fore. There are two very clear examples.

Sinn Féin, suddenly and without any consultation, calling to close all schools in the North because the South had done so was a folly, not just because no one had begun to think about who would look after the children, including those with special educational needs, but because emptying the schools without lockdowns, furlough schemes or wider planning could actually contribute to spreading the virus and could have put lives at risk.

Likewise, when the DUP used a cross-community vote to defeat the proposed two-week extension of the circuit-breaker that would have protected all communities, they did so contrary to a crescendo of advice from SAGE and the CMO that Covid in Northern Ireland was the highest in Europe, and they did it on the basis of anecdote and empathy towards hairdressers and café owners and the like, claiming with utter cynicism that this was a matter of significance to constitutional minority rights.

In both these disputes, disabled people were not considered, let alone served by the politics. Standing back, institutionally the multiple tensions of forced coalitions allowed for heartbreaking irresponsibility in political leadership. TEO and the Executive Committee in the first wave effectively abdicated decision-making to a Chief Medical Officer ensconced in an overheating Department of Health, and in the second wave the Executive Committee and its voting process failed to protect the Department of Health when it really mattered.

My Lady, this was the nadir of the peace process. Elderly people who survived the Troubles died. Disabled people who do not enjoy proper enfranchisements under this political system died and otherwise suffered.

As to Nuala Toman’s critique that “We are not seen and we are not heard”, the fundamental problem for disabled people is that no government department or programme of government in Northern Ireland has ever lived long enough for any part of the state to take responsibility for their interests and their rights.

Under the New Decade, New Approach document, the Department for Communities was given the leadership role on disabled people but received it too soon before the pandemic to lead in any meaningful way.

Although Minister Hargey drew attention to the steps that were taken to support disabled people, she admitted that these were insufficient without proper consultation with DPOs. It is clear that the essence of the measures was paying benefits on time and setting up helplines that worked for some but not for all. The two ministers in the DFC role do not appear to have raised the position of disabled people under the pandemic response in the Executive Committee or the Assembly at any time.

Hargey’s initiative to expand the emergency leadership group beyond established stakeholders in business and unions did not lead to the inclusion of Disability Action or other DPOs even though they knew of the organisation, its work and staff.

In part this was a structural problem. The departmental corporate statement indicates that there was no single officer or unit with overriding responsibility for the needs of disabled people, but it was also a cultural problem. While the DFC did not consult with DPO at all on the risk posed by the virus or the NPIs, let alone on the design of any mitigating measures, the answers given by the minister in oral evidence also portrayed a lack of understanding as to how fuller engagement might work. She mentioned two disability-related organisations, the NOW Project and Inspire Wellbeing. Neither of those groups are DPOs.

They are also organisations working only within one aspect of disability, learning disability and mental health, and in answers to questions from CTI, Minister Hargey cited DFC’s work with Advice NI as an example of co-production. Advice NI is a general charity providing advice on benefits, personal and business debt, tax credit and related matters. It’s effectively a CAB equivalent, plainly not a substitute for meaningful structured consultation with disabled people.

The DFC has promised a definitive strategy for disabled people, and it said it would be ready for December 2021, but due to the further collapse of power-sharing there is still no programme of government that might begin to deliver on the promise of the Good Friday Agreement to supplement the Human Rights Act by creating a bill of rights to deal also with disabled people’s entitlements under international law.

Finally, the Covid state failed its disabled people because by comparison with the other parts of the UK, government in Northern Ireland was the least focused on disabled people’s issues. Ministers and civil servants here need to feel the embarrassment of comparison.

In Wales, government officials made contact with DPOs by mid-March 2020 to seek their planning advice. Regular fortnightly meetings between DPOs and the Minister for Social Justice started by April 2020. Welsh Government then sponsored a DPO-led inquiry into the impact of Covid measures and thereafter established a disability taskforce to lead on recovery and a whole-society disability strategy.

In Scotland, a strong tradition of social engagement with disabled people faltered in the first weeks of Covid, albeit regular meetings with DPO started with ministers and civil servants in May 2020 and went on for several months. In Scotland, the Social Renewal Advisory Board reported as early as January 2021 and contained two major figures in the Scottish DPO movement as well as ministers and senior civil servants.

I’m going to say, even in England, which the DPO have strongly criticised, senior ministers dedicated meetings on the distinct impact of Covid on disabled people in May, October and November 2020, whereas in Northern Ireland the issue of massively disproportionate impact on disabled people did not cause the Executive Committee or even a special meeting of ministers to meet once.

My Lady, it is essential for the Northern Ireland political establishment to appreciate that for all its commitment to community, and the reality that most of the politicians hail from grassroots and remain proud of their connection to them, its connections to its communities has not properly extended to disabled once, and that the ultimate answer to why it did not do better is that it did not yet know how.

The DPO have asked the Inquiry in all its modules to consider how a new and broader ethics of care must become more mainstreamed into state and society after Covid. Northern Ireland needs to be shaken out of its complacency that it is yet truly working together in a state of social partnership with all its people. That needs to happen not least because its politics is in the custody of political parties who have committed to place humanity over their competing visions of state. Failure to govern for disabled people during Covid, therefore, is a lesson to all parts of this place.

The advocacy of groups like Disability Action and the situation of one in four people who are disabled in Northern Ireland needs to be a key part of the continuing post-conflict transition. The “post” in the post-conflict requires recognition that there is a plurality of communities in Northern Ireland, not just Nationalists and Unionists, but as yet the mechanisms and the dominant political narratives have been insufficient to govern for them.

My Lady, where that leaves us is that it is time for this public inquiry, engaged as it is with the fate of disabled people and other marginalised groups, to challenge the insularity and irresponsibility of the way that this place can be governed, because it doesn’t have to be this way, and those in power who care about it can make it change.

Thank you.

Lady Hallett: Thank you very much indeed, Mr Friedman, I’m very grateful.

I shall return at 11.40.

(11.22 am)

(A short break)

(11.40 am)

Lady Hallett: Ms Anyadike-Danes.