Lord Jauncey of Tullichettle
rose to move, Thai this House takes note of the report of the Select Committee on Chinook ZD576 (HL Paper 25).The noble and learned Lord said: My Lords, the report before your Lordships relates to a Chinook helicopter that had recently undergone a mid-life update. During that process, an automatic fuel system commonly known as FADEC was installed. It was designed to keep the aircraft's two rotors turning at 100 per cent speed to ensure that the blades were kept properly apart by centrifugal force. At the time of the accident there had been problems with the FADEC—five in normal flight. On 1st June 1994, the day before this tragic accident, a problem arose at Boscombe Down, the research establishment, which operators were unable to trace because of an apparent difficulty in verifying the computer software involved. The establishment had, therefore, grounded Chinooks for the time being. They remained grounded at Boscombe Down until October 1994. There had also been other malfunctions with Mark 2 Chinooks; that is to say, Chinooks that had undergone their mid-life update. The malfunctions included spurious engine fail captions, undemanded flight control movements (UFCMs), undemanded engine run-up, engine shut down and torque mismatches between the engines. On 10th May, Chinook ZD576 had suffered a detached balance spring bracket in a confined space, where its controls were kept. There is doubt about whether that caused a UFCM or whether it merely affected the controls. The report of the board of inquiry referred to it as a UFCM. The president of the board giving evidence to the committee said that it was an alteration in the field. The flight in question, from Northern Ireland to Inverness, was made by a special forces crew that was very experienced in flying helicopters. The senior sergeant load master was also reckoned to be a very good navigator. They planned the flight under visual flight rules (VFR). Owing to icing restrictions imposed on Mark 2 Chinooks as a result of the difficulty that had been experienced in verifying the software, the entire flight could not have been carried out under instrument flight rules, given the high hills that would be encountered in Lochaber. The crew was aware that fog and low cloud were covering the Mull of Kintyre. The crash took place in cloud at 810 feet above sea level, a short distance inland from the lighthouse on the Mull. All crew and passengers were killed, probably instantaneously, in this tragic accident. The RAF immediately set up a board of inquiry. An RAF inquiry consists of an initial board that hears evidence and makes investigations whose findings are reviewed by reviewing officers. I shall refer to the initial board as "the board" by contrast to "the reviewing officers" to make the details easier to follow. The initial board was set up immediately. It flew to the site of the accident and spent many months producing a detailed report. It concluded that the flight captain, Flight Lieutenant Tapper, who was the non-handling pilot, had committed an error of judgment and that the co-pilot, who was handling, was not at fault. The board scouted many potential mechanical defects, which, it concluded, it was unable to exclude as possible causes. However, it was unable to determine any definitive cause. Two years later, a fatal accident inquiry was conducted in the sheriff court of Paisley by a very experienced sheriff, Sir Stephen Young, who is now Sheriff Principal of Grampian Highlands and Islands. The inquiry lasted 16 days, and the sheriff produced a 123-page judgment. Applying the standard of proof required in a fatal accident inquiry, namely the balance of probabilities, the sheriff was unable to determine the cause of the accident, although it was his statutory duty to do so. It follows that, if the sheriff had been asked to make a finding of negligence, he could not have done so. Without a cause, a finding of negligence cannot be made. In 2000, the Public Accounts Committee of another place rejected the finding of the board, and, on 30th May 2001, the House of Lords Select Committee was appointed. Our remit was as follows:
The standard of proof has been an important aspect of the inquiry. The RAF rules included the following provision:"To consider the justification for the findings of those reviewing the conclusions of the RAF board of inquiry that both pilots of the Chinook helicopter which crashed on the Mull were negligent".
That standard of proof is far higher than the civil standard of proof, on the balance of probabilities, and the criminal standard, beyond reasonable doubt. The reason for such a high standard is fairly obvious: a deceased pilot is not there to explain his actions to a board and has no-one to represent his interests at that board. The committee considered its remit carefully and concluded that it was required simply to look at the evidence that was available to the board and the reviewing officers. It was even suggested that we could dispose of the matter simply by looking at the remarks of the two senior reviewing officers and dealing with it on that basis. We concluded that the House expected more from us, so we called some evidence and looked at many documents. I propose to address your Lordships, as briefly as possible, on two bases: first, on the basis of the material that was before the board and the reviewing officers, and, secondly, on the basis of the material before us, including what was before the board. I should explain that the reviewing officers had no evidence to consider other than that which had been considered by the board. We had evidence from a yachtsman, who was the only person who saw the aircraft between the time it left the coast of Antrim and the time it crashed. We also had the evidence of the senior inspector from the Air Accidents Investigation Branch at Farnborough, who had provided the board with a comprehensive and detailed report. The aircraft carried neither accident data recorder nor cockpit voice recorder. There was no black box, so there was nothing to work on in that line. The investigator could only try to piece together events from what was left of the aircraft on the hill. The task of Mr Cable, the investigator, was made very difficult by the lack of evidence available, because the aircraft not only hit the ground twice and was seriously damaged by that, but also caught fire, resulting in a great many components being damaged. Some help was enlisted from the manufacturers. I must say a word about the navigation equipment that was carried. It was a device manufactured by Racal, which has been referred to as SuperTANS. For convenience I shall refer to it simply as TANS. A number of waypoints on the projected flight could be fed into it before the flight started. When the first waypoint was put in, a screen in the cockpit showed the distance and bearing of that waypoint and the time to go, which was calculated from the current speed of the aircraft. As the display was constantly updated, on a constant bearing the distance would decrease. If the course was altered, the bearing would decrease. In this case, the Mull of Kintyre lighthouse was chosen as waypoint A. Waypoint B was the narrows of Corran on Loch Linnhe. The TANS was never intended as a flight recorder, but, with considerable ingenuity, Racal extracted two pieces of information from it. First, the waypoint was changed from A to B when the lighthouse, which was the first waypoint, was bearing 18 degrees true and 0.81 nautical miles distance."Only in cases in which there is absolutely no doubt whatsoever should deceased air crew be found negligent".
My Lords, I apologise to the noble and learned Lord, but I thought he said that the first waypoint was the lighthouse. My recollection is that the first waypoint was before the lighthouse.
Lord Jauncey of Tullichettle
My Lords, my understanding was that the first waypoint was the lighthouse, albeit the waypoint change was made before the lighthouse was reached.
My Lords, I am a tiro in these matters, but it would make no sense to have the lighthouse as a waypoint, because the aircraft would crash into the lighthouse.
Lord Jauncey of Tullichettle
My Lords, no doubt I shall stand corrected, but—
My Lords, is it correct that the first waypoint selected was approximately 280 metres to the north-east of the lighthouse, because the co-ordinates had been incorrectly put into the SuperTANS?
Lord Jauncey of Tullichettle
My Lords, that is partially correct. There was a minor error in the TANS navigation system that contributed to part of the 280 metres. However, the waypoint was certainly on land. The noble Lord, Lord Gilbert, may find it curious, but that is what we were told.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach)
My Lords, I am sorry to interrupt the noble and learned Lord, but I think that my noble friend Lord Gilbert is wrong. The waypoint can be on land or at sea. The relevant point is when the helicopter flies over it or close to it. I think that is what the noble and learned Lord was saying. I do not want to interrupt the noble and learned Lord, but I hope that is for the benefit of the House.
Lord Jauncey of Tullichettle
Anyway, my Lords, when waypoint A, whatever it may have been—if noble Lords prefer that—was bearing as I have said, the waypoint was changed to B. That removed from the screen all reference to waypoint A—no distance, no bearing—and substituted the bearing, distance and time to go for Corran. However, notwithstanding that alteration, the aircraft flew on into the Mull.This is a matter of considerable importance, because one would normally expect that when a waypoint was changed, the aircraft would alter course to the next waypoint that came up on the screen. Mr Cable, the inspector, found that there were a number of detachments of items in what was described as the broom cupboard—a small cupboard at the rear of the cockpit in which were housed most of the hydraulic controls for the rotors and other parts of the helicopter. He could not dismiss the possibility of some pre-impact detachment of the control system jam. Paragraphs 33 to 35 on page 68 of the House of Lords Paper 25(i) set that out clearly. I shall not trouble your Lordships by reading through that. Mr Cable came to the conclusion that there had been some last manoeuvre of the aircraft before it finally crashed. The manoeuvre involved the aircraft climbing up in a flare. To try to find out more about that, he asked Boeing, the aircraft manufacturer, to do a simulation. He gave the details of the position of the aircraft and such information about its mechanical state as he could find. Boeing came back with the answer that the only speed and rate of climb that could be matched to a situation immediately before the final flare was an air speed of 150 knots and a rate of climb of 1,000 feet per minute, followed by the final flare, which was a much steeper climb with the nose up, but that had been initiated four seconds before the final impact and had started 2.9 seconds before. The difference of 1.1 seconds is the time that it took for the action of the flare to take effect. The board referred to various unforeseen malfunctions of the HC Mark 2 Chinooks, such as undemanded engine shutdown, undemanded engine run-up, serious engine fail captions and misleading and confusing cockpit signs. There was no positive evidence that any of those things had happened, but the board was not prepared to discount that such might have happened without trace. The board also assumed that the crew of the aircraft had not seen the Mull at the waypoint change, but made no comment on the failure of the aircraft to alter course after making that change. At the end of the day it concluded that the cause of the crash was the selection by the pilots of an inappropriate rate of climb to overfly the Mull. As I say, it found that the captain of the aircraft was guilty of an error of judgment but that the non-handling pilot was not. The matter was then subjected to the reviewing officers. The group captain at Aldergrove reckoned that the exact train of events could never be determined with certainty. The group captain at Odiham, Air Commodore Crawford, who gave evidence to us, thought that it was highly probable that the crew had seen the coast and had decided to fly VFR up the west side of the Mull. He considered that the changing of the waypoint on the navigating system was absolutely crucial as it was entirely appropriate if it was the intention of the crew to fly VFR up the side of the Mull, but wholly inappropriate if in fact they intended to fly on into the cloud covered Mull. However, he reckoned that the evidence was not sufficient to be specific about any human failings. Air Chief Marshal Day, as he then was—now Sir John Day—reckoned that none of the possible factors and scenarios postulated by the board and by the group captain were so strong that they would have prevented such an experienced crew from maintaining safe flight. He found both pilots negligent to a gross degree. They should have turned away on approaching cloud or reduced speed and climbed. However, he went on to say that it was incomprehensible that the pilots had acted as they did. By referring to the factors not being so strong, it appeared that he was not applying the appropriate standard of proof. Air Chief Marshal Sir William Wratten agreed with him. He reckoned that there was not even a hint of circumstances beyond the pilots' skill to accommodate. He, likewise, made no comment on the waypoint change. The air marshals merely proceeded on the basis that the required standard of proof was satisfied if no positive evidence of cause other than negligence could be found. That, of course, overlooks the board's view that there were possible malfunctions which left no trace and also the inspector's view, or his refusal to dismiss the possibility of a control jam. Taking the report as it stood, your Lordships' Committee considered that the air marshals had failed to apply the correct standard of proof and that their conclusions were therefore defective. That was basis one. Our second basis was reached after we heard evidence. We heard evidence from both air marshals; Air Commodore Crawford; the president of the board; the yachtsman, Mr Holbrook; an inspector; and from two airmen, Squadron Leader Burke, who was a maintenance test pilot at Odiham, and Witness A, who was a highly decorated special forces pilot. Mr Holbrook, Air Commodore Crawford and Witness A all thought that the crew would have seen the shoreline of the Mull below the cloud level which was at about 300 feet, particularly as there was at the time a 25 knot onshore wind. With the consequent breakers the shoreline must have been fairly readily visible. The two RAF witnesses had no doubt that the changing of the waypoint was consistent with an intent to fly visual flight rules west of the Mull. As I say, the change of waypoint was not a matter that was addressed at all by the air marshals. As I say, Mr Cable refused to dismiss the possibility of a control jam. Both Squadron Leader Burke and Witness A were of the view that that was the most likely cause of the aircraft carrying on flying into the hill. The air marshals, however, assumed that the pilots had made a conscious decision to fly into cloud and that the negligence consisted of their failure to reach safety altitude before reaching the Mull. That, of course, would have meant going into instrument flying rules. Sir John Day was at pains to point out that his conclusions were based on fact, but, when they were examined, it was clear that some of them were merely hypotheses or assumptions. We set the matter out fairly clearly in paragraphs 135 and 136 of our report. The Boeing simulation was relied on as showing that ZD576 was under control during the last four seconds of flight, from which assumption was made that it was under control from the waypoint change to impact. But it was demonstrated that the simulated prediction speed of 150 knots and 1,000 feet rate of climb prior to the final flare was not possible in practice. Witness A tried it and could not produce a rate of climb at that speed. Sir John Day had a mathematical simulation carried out and could not achieve more than 650 feet a minute at a speed of 150 knots. It is probably fair to say now that the subsequent Boeing simulation altered the position slightly. But the Boeing simulation did not cast any light on whether the aircraft was or was not under control at the time that the reputed flare occurred. We took the view that the evidence was not such as to enable it to be said that there was absolutely no doubt whatsoever that the aircraft was under control during the last four seconds. There was no positive evidence that it was under control and no negative evidence to exclude the flare occurring as a result of malfunction. As I say, the Boeing simulation does not throw any light on that. But even if the aircraft was under control during the last four seconds, that does not help to determine what the position was between the making of the waypoint change and the time when the flare started. Both the air marshals conceded that they could not exclude the possibility of a control jam having occurred, but considered that the pilots were grossly negligent in approaching so close to the Mull when they made the waypoint change. That assumed a continued high speed from the waypoint change and an inability to see the land mass. But, again, that does not take account of the fact that had the pilots reduced speed after the waypoint the radius of turn would have been substantially decreased, and that if they were in danger by being at the waypoint on an assumed continuation of their course and speed, that danger could have been eliminated by reducing speed. A very helpful document was produced by the MoD after we had completed our deliberations—indeed, our report was nearly finished. It showed the effect of speed on the turning circle of this aircraft and certain degrees of bank. That demonstrated the dramatic effect that would be achieved in reducing the radius by reducing the speed. The cloud was hugging the Mull. We know that that was the evidence from the yachtsman. There is no suggestion that the cloud came out past the sea; the evidence of the yachtsman rather suggested the contrary: that it was hugging the hills. One has to ask: first, what possible reason would there be for the pilots to make a waypoint change, which lost them all reference to the lighthouse or the point somewhat to the east of it? Secondly, knowing that there was cloud ahead—they had been warned of that before they had left—and presumably could see it, as the yachtsman could, why should they wish to abandon the visual flight rules and convert to IFR? In order to do that they would have had to have climbed very much higher than they did. In summary on that matter, the committee concluded that the pilots probably saw the coastline at the waypoint. It would have been normal in that situation to have altered course. There was no apparent reason for departure from what was normal. Why fly into cloud under VFR when they must have known that it was there? I suggest that in that situation one has to look very hard at the possible malfunctions that could have occurred. It cannot be said that there was absolutely no doubt that it was their negligence, and not a malfunction that left no trace, that was responsible. It only remains for me to deal with the answers from the MoD. I should explain that along with its answers was produced what I can only describe as a tome from Boeing, extending to 160 or 170 pages, including graphs and all sorts of pieces of information that are fascinating, no doubt, to those who understand them. I do not propose to deal with Boeing's latest effusion; I am content to leave that to my noble friend Lord Tombs, who is far more able and better equipped to deal with it than I am. Finally, I turn to the MoD response. It refers in paragraphs 10, 11 and 12, to the fact that 576 could not have reduced speed to 80 knots by the time the waypoint was changed. Mr Holbrook said that he thought that the speed of the aircraft when he saw it was 80 knots, but there is no other such suggestion; we certainly did not suggest it, and Mr Holbrook had never seen a Chinook previously. He wanted to see one before giving evidence to the board and asked if he could but was never afforded the opportunity. There is really no evidence—and the committee did not rely on any suggestion—that the aircraft was doing only 80 knots at the waypoint change. At paragraph 15 of section 1 of the MoD response, it is said that it was implausible that any jam could have cleared itself before the final manoeuvre without trace. First, that assumes that 576 was under control at the time of the flare—that any jam had disappeared by that time without trace. In any event, what about all of the detached inserts in the broom cupboard, which could have jammed? We know that there had previously been jams. What about the inserts that were found detached after the crash? It was also said that the detached balance spring bracket, which was found on the previous occasion in this aircraft. only alters the feel of the control. Squadron Leader Burke differed from that. More important was an engineering report to which we refer in paragraph 56 of our report, which makes it clear that such a displacement was a very serious flying hazard. We are then referred in the report to the inescapable conclusion that controlled flight into terrain was involved. We all agree that it was flight into terrain but to say that it was "controlled" begs the question. The issue is whether the aircraft was or was not under control at the time. In paragraph 23 of section 1, the MoD again refers to the pilots failing "to take avoiding action". If they had and the aircraft was under control throughout, and they had just flown straight on into the Mull with no problems, I do not believe that anyone would dispute that they were at fault. That, we submit, is not really what happened. It is suggested at paragraph 10 in section 2 that the pilots made a conscious decision not to follow the route directed to Corran. There is no suggestion as to the reasons why they made such a decision and it means, as I said, that they had abandoned the intention to fly VFR but voluntarily headed to cloud, knowing that sooner or later they would have to convert to instrumental flight rules although they had not taken any necessary steps to do that. The MoD refers in its response to the speed at the waypoint change. The committee found that the speed was unknown; there was no evidence because although one can deduce speed from a current screen under the heading, "Time to go", that could not be extracted by Racal in relation to the original waypoint A. The MoD also refers to the pre-impact detachment of a balance spring only affecting the feel of the controls. I have already made the point but refer again to the engineering report. It is said that it was implausible that the jam could have cleared itself before the final flare without trace. Again, I have dealt with that by referring to the state of the broom cupboard after the crash and the warning in the engineering report. A good deal was made in the MoD answers about spurious engine fail captions. The report alleges that they could not have contributed directly. We would not dispute that. The purpose of referring to them is not that they would have affected the flight as such but that they would have provided a serious distraction to the pilots, who would be justified in thinking that the light was telling the truth. After all, it was not there only for ornamentation; it would not be unreasonable for them to have thought that it was performing its correct duty rather than acting spuriously. Paragraph 23 of section 3 of the government response states that,
That ignores the declared intent of the captain of the aircraft—Tapper—to fly VFR. It ignores the making of the waypoint change, with consequent loss of positioning relative to the Mull, and it assumes that the absence of positive signs of malfunction can be treated as proof that no such malfunction can have occurred. Notwithstanding the evidence of Mr Cable, the inspectorate could not dismiss the possibility of a restriction or jam, nor some other fact highly relevant to the accident. When the air marshals said—this is repeated in the MoD answers—that the aircraft was in danger at the waypoint change, they were assuming that it was continuing at the speed at which it was then assumed—it is only an assumption—to be travelling; that is, at a fairly high speed. If the speed could have been. or had been, reduced and if, thereby, the radius of turn had been much reduced, then there is no basis for saying that, in that context, the aircraft would have been perilously close to the Mull. They say that there was no honest doubt of negligence. I submit that that, again, is not the standard which should be applied; namely, that of absolutely no doubt whatever. It comes far nearer the ordinary criminal standard of "beyond reasonable doubt". I shall not say any more about Boeing. The other matter that I want to raise is that of negligence. The MoD criticises the committee's reliance on the test of negligence, which is referred to in the RAF's own guidance. It says that, in the test that we referred to, the pilot should have foreseen that action or failure to take action would in all probability occasion the final event. In response to that, the government response states that,"all … hypotheses … are implausible … [no] known fact • does not fit … controlled flight".
If the manner of flying was such that an aircraft was exposed to a serious risk, one would have thought that a properly trained and competent pilot should foresee the probable consequences of incurring that risk. If the results were fatal or catastrophic, then I should have thought that he would be negligent. Prior to our doing so, the air marshals—albeit not in their initial remarks—concentrated on negligence at or before the waypoint change. We considered that matter in two stages and took the view that at the waypoint change they could be said to be negligent only if they should reasonably have foreseen that whatever action they took then or thereafter was likely to place flight 576 in a position of serious danger. Our position in relation to that is that reduction in speed and reduction of radius would have avoided that. Therefore, we concluded that that test was not fulfilled. We then went on to consider whether subsequent negligence was the cause of the accident. I believe that we have already dealt with those matters—at least, I hope that I have. I do not believe that it is necessary for me to say any more about the MoD response. However, in short, we take the view that this has in no way met the points that we made in the report nor weakened the strength of our conclusions. In drawing to a close, I should perhaps mention that our report does not in any way impugn the integrity or honesty of the air marshals. We simply think that they were over-generous in imputing to hypotheses and assumptions the attribution of fact and in applying a lower standard of proof than was required of them by the RAF rules. I am very grateful to my colleagues on the committee for their assistance during the course of the hearings and for the preparation of our report. I believe we would all want to express our gratitude to our Clerk, Andrew Makower, for making all the arrangements. He had a great deal of work to do and had an immense amount of paperwork, with which he was supplied from all directions. My noble friend Lord Chalfont has been good enough to keep me informed about the amendment which he has tabled tonight. I have thought carefully about my position in relation to that. It seems to me that, as I am moving the Motion that the House takes note of the report, it would be illogical if I then supported the amendment to my Motion. Therefore, I believe that the proper course will be to abstain if there is a Division on my noble friend's amendment. I beg to move. Moved, That this House takes note of the report of the Select Committee on Chinook ZD576 (HL Paper 25).—(Lord Jauncey of Tullichettle.)"dangerous flying exposing an aircraft merely to a very serious risk of crash, falling short of a probability could never be negligent, even if that risk were to materialise".
My Lords, I was a member of the Select Committee whose report we are debating tonight. I am grateful to the noble Lord, Lord Chalfont, for agreeing to my speaking before he moves his amendment. Since what I have to say is complementary to the speech of my noble and learned friend, Lord Jauncey, I hope that this arrangement will be of assistance to the House.We were very fortunate to have as our chairman my noble and learned friend, whose vast judicial experience guided the committee and whose painstaking fairness and objectivity permeated our deliberations. Since my colleagues were all eminent lawyers, I shall confine my remarks tonight to the engineering aspects of our report and those raised in the government response. I have spent most of my working life in the heavy electrical manufacturing, electricity supply, nuclear power and aero-engine industries, and so am no stranger to accident investigations. This accident was very severe, not only in terms of the loss of so many lives but also in terms of the extensive damage to the aircraft. The technical side of an RAF accident investigation is carried out by the Air Accidents Investigation Branch (AAIB), which reports to the board of inquiry but plays no part in its conclusions. There was no cockpit voice recorder or flight data recorder, despite previous recommendations that they should be fitted. The AAIB carried out a very thorough examination of the available evidence and remarked that that evidence was "remarkably thin". It reported that fire had,
It also reported that,"appreciably damaged 80 per cent of the aircraft and destroyed around 20 per cent".
In conclusions 43 to 45 it said,"few reliable signs of cockpit and cabin instrument indications at initial impact were found, due to gross initial shock loading on impact or deformation and subsequent impacts".
"Almost all parts of the flight control mechanical systems were identified, with no evidence of pre-impact failure or malfunction, although the possibility of control system jam could not be positively dismissed".
Significantly, it added:"Most attachments on both flight control system pallets had detached, including the balance spring bracket that had previously detached from ZD576's thrust/yaw pallet, with little evidence to eliminate the possibility of pre-impact detachment".
My final reference to the AAIB report, which is long and comprehensive, deals with the fracture of a tie-bolt in the linkage between the pilot controls and the hydraulic servos operating the flight control systems. The bolt was badly manufactured, with a second, redundant and roughly drilled split-pin hole in the threaded area. The AAIB report concluded that,"The method of attaching components to the pallets appeared less positive and less verifiable than would normally be expected for a flight control system application".
Like the AAIB, I have no hypothesis for the failure of this component in the control linkages, but the assumption faute de mieux that it resulted from impact serves to illustrate the extent of uncertainty resulting from the extensive damage. As part of the AAIB investigation, and at the request of the board of inquiry, Boeing carried out a simulation of the final three or four seconds of the flight to see whether the attitude of the aircraft on impact could have resulted from a pilot-controlled flare. Boeing were given a series of possible conditions preceding those final seconds and were able to confirm that one of them was possible, involving an air speed, as my noble and learned friend said, of 150 knots and a rate of climb of 1000 feet per minute. That was interpreted by the board of inquiry, and the reviewing air marshals, as confirmation that the aircraft was under control at impact. In oral evidence to us it became clear that the conditions relied upon were not achievable by a Chinook in those operating conditions, a conclusion accepted by Air Marshal Sir John Day following his own investigation. Although a later simulation by Boeing claimed that the aircraft was in fact able to achieve those flight conditions, that was only under carefully controlled and instrumented conditions and is properly referred to in the government response as "theoretical". There seemed to be some misunderstanding in several stages of the inquiry as to the role of a simulation and a failure to realise that it can only indicate what might possibly have happened and not what in fact happened—a distinction accepted by Boeing in their later simulation report, to which I shall return later. In summary, there was no factual evidence to indicate the reasons for the aircraft failing to turn at waypoint A, as the crew had decided, and no direct evidence that the aircraft was under pilot control at any time following the selected waypoint change. There seemed to be a readiness on the part of the board of inquiry and some of the reviewing officers to accept that absence of evidence of a technical failure meant that there had not been a technical failure. That was a remarkable assumption, especially given the "remarkably thin evidence", the service experience and the various caveats of the AAIB report, some of which I have quoted. I turn now to the Government response to the committee's report and I shall again confine my comments to the technical issues, with one exception. At a number of points in that response they refer to the reviewing officers as a body expressing opinions. Reviewing officers can be divided into two: two wing commanders and two air marshals and in general they were not in agreement. In general the wing commanders agreed with the report of the board. Apart from that, the response contains some misleading statements. In paragraph 17 it suggests that detachment of the flight control inserts to the pallets, to which I referred earlier,"although the means by which the overload had been applied was unclear, the failure had resulted due to impact forces".
The partial detachment of a single insert on a previous flight of this very aircraft did indeed lead to a change in feel of the controls, but a Royal Air Force engineering report on the following day said,"would result in a change in the feel of the controls and is readily detectable. The aircraft is still controllable—and moreover the AAIB report indicated that the pallets were likely to have become detached during the post-accident break up of the aircraft''.
That confirms the obvious, that detachment of one or more of those brackets in a very confined space could result in a total control jam. But even more misleading is the attempt to ascribe to the AAIB the view that the brackets were likely to have become detached as a result of the crash. On the contrary, as I said earlier, the AAIB report referred to"Detachment of the bracket within the flying control cabinet during flight could present a serious flight hazard, with the danger of a detached bracket fouling adjacent flying controls".
and went on to comment unfavourably on the method of attachment. Paragraph 15 of the response claims that it is implausible to suggest that a control jam occurred and then cleared itself. But that is exactly what happened to a US Army Chinook which almost crashed, and Air Chief Marshal Sir William Wratten, the senior reviewing officer, told us in evidence (Question 415) that he had experienced one such event himself. In any event it might be noted that the clearing of a possible control jam formed no part of the committee's findings; it was part of the MoD hypothesis that the aircraft was under control at the time of the crash. I turn now to the further simulation work carried out recently by Boeing. It adds little to the previous work apart from being considerably more thorough. But two points should be brought to your Lordships' attention. First, Boeing suggests that its earlier simulation did not play a great part in the conclusions reached by the board of inquiry. That is contrary to a careful reading of the board of inquiry report and oral evidence to our committee by the reviewing air marshals. More important is Boeing's constant and entirely correct insistence that a simulation cannot describe what actually happened. It said,"little evidence to eliminate the possibility of pre-impact detachment",
More generally, and in a way applicable to much of the investigation—I apologise for this rather long quote but it is extremely important—it said:"The Boeing simulation was exactly that—a simulation, not a factual reconstruction".
I agree wholeheartedly with that standpoint but, taken in conjunction with the "remarkably thin evidence", it supports the conclusion of the committee that the conclusions of the board of inquiry did not satisfy the rigorous standards of absolute certainty required of them."Since our primary interest is flight safety, our comments are based on balanced information and probability rather than absolute fact since, in the engineering safety realm at least, things are usually more approximate than absolute. In many instances with aircraft accidents, what may be considered as fact is not really fact at all and may even be contradictory of other 'facts'. For this reason every 'fact' must be weighed according to its relative probability of truth. It is rarely known with absolute certainty exactly what all the reasons for an aircraft accident are. One can only determine a most probable cause; as many accidents in the past have demonstrated, even with cockpit voice recorders and flight data recorders, there is always room for doubt".
rose to move, as an amendment to the above Motion, to leave out all the words after "House" and to insert "accepts the report of the Select Committee on Chinook ZD576 and calls upon Her Majesty's Government to set aside the finding of gross negligence against the two pilots".The noble Lord said: My Lords, I beg leave to move the amendment standing in my name on the Order Paper. I have already written to many noble Lords with an explanation and even something of an apology for my amendment to the Motion of the noble and learned Lord, Lord Jauncey, which is a "take note" Motion upon which there may be debate but on which it is not normal to vote. As the Government were unable to accept—in other words, rejected—the conclusions of the noble and learned Lord's Select Committee, I felt it was important that the House should have an opportunity to express its opinion on this somewhat cavalier dismissal by the executive of the findings of a Select Committee of your Lordships' House. For that reason I tabled this amendment. In my recent contacts with the Government on this matter, it has been made clear to me that they have no intention of changing their attitude. Indeed, I gained a clear impression that if I pressed the amendment the Government would not allow a free vote. If that is so, I think that it is a pity. Apart from anything else, it means that the 27 Labour Peers who voted in April for setting up the Select Committee will be deprived of the opportunity of recording their acceptance of its conclusions, if they should wish to do so. However, we shall see what happens later this evening. It is not my intention today to rehearse any of the familiar technical arguments which surround the crash of the Chinook on the Mull of Kintyre, about which we have heard a certain amount already today. I intend to address my remarks only to the justification for the verdict of gross negligence brought against the pilots by the two air marshals reviewing the findings of the Royal Air Force Board of Inquiry. In other words, I intend to stick to the subject of the Select Committee's report. Here I repeat something which the noble and learned Lord, Lord Jauncey, has said. I repeat it because it is crucial to the whole of this case. The Royal Air Force regulations in effect at the time of the crash required—and I quote because it is important to know the exact words:
I repeat, "absolutely no doubt whatsoever". It was with this very strict standard of proof in mind that the original Royal Air Force Board of Inquiry, under Wing Commander Pulford, came to its conclusions in the section of its report headed "Consideration of Human Failings". That is an important part of the Board of Inquiry's report. It came to these conclusions. In the case of Flight Lieutenant Tapper, it stated:"Only in cases in which there is absolutely no doubt whatsoever should deceased aircrew be found negligent".
In the case of his colleague, Flight Lieutenant Cook, it said:"It would be incorrect to criticise him for human failings based on the available evidence".
When these clear conclusions reached the two station commanders involved—already referred to by the noble and learned Lord, Lord Jauncey—the station commander at RAF Aldergrove, commented:"The Board concluded that there were no human failings with respect of Fl Lt Cook".
The station commander at RAF Odiham said:"I believe that the exact train of events can never be determined with absolute certainty".
In other words, the Royal Air Force Board of Inquiry and its first two reviewing officers all concluded that there was insufficient evidence to state,"In assessing human failings, the evidence is insufficient to be specific".
that the accident was caused by human failings, much less by gross negligence. It was only when the matter reached the two senior reviewing officers, Air Vice-Marshal Day, as he was then, and Air Marshal Wratten, that gross negligence was attributed to the pilots, without—as the noble and learned Lord has said—any additional evidence of any kind. Air Marshal Wratten began his comments as the reviewing officer with the significant statement:"with absolutely no doubt whatsoever",
these, as we have already heard, are the accident data recorder and the cockpit voice recorder, neither of which was present in the helicopter—"Without irrefutable evidence which is provided by an ADR and a CVR"—
I repeat, "a degree of speculation". Yet that degree of speculation did not prevent Air Marshal Wratten from concluding beyond any possible doubt whatsoever that the actions of the two pilots amounted to gross negligence. Since then, as the noble and learned Lord has said, there have been a number of other conclusions reached by various authorities on this matter. First, the fatal accident inquiry in Scotland which conducted a three-week examination of the evidence under Sheriff Sir Stephen Young. That inquiry came to the following conclusion:"there is inevitably a degree of speculation as to the precise details of the sequence of events in the minutes and seconds immediately prior to impact".
That was the conclusion of Sheriff Young: he did not know what the cause of the accident could be. It is worth noting that he came to that conclusion on the balance of probabilities, a much lower standard of proof than that required of the Air Marshals. Later the Public Accounts Committee of the House of Commons examined the matter of the acceptance into service of the Chinook Mk 2 helicopter. It came to the conclusion,"It has not been established to my satisfaction, and on the balance of probabilities, that the cause of the accident was the decision by the crew of ZD576 to overfly the Mull of Kintyre at cruising speed and their selection for that purpose of an inappropriate rate of climb. It may then be asked what was the cause of the accident. For my part I can only say that I do not know".
and that,"that the Chinook Mark 2 acceptance process and outcome were flawed",
The Ministry of Defence ignored that recommendation, as indeed it has ignored or rejected any conclusion which differs from its own. Next, Lord Murray, a former Lord Advocate of Scotland, examined all the evidence in great detail and came to the following conclusion. He said:"with regard to the Department's preference for their own procedures as constituting unwarrantable arrogance, we simply cannot understand why the Department continue to defend the unsustainable finding of gross negligence and recommend it should be set aside".
about the cause of the accident. He suggested that the accusations of gross negligence were unsustainable and should be set aside. He said:"Without impugning the integrity or sincerity of the senior Royal Air Force reviewing officers, one is constrained to conclude that they misdirected themselves in overruling the original Board of Inquiry and in holding that there was absolutely no doubt whatsoever"
The inquiry was reopened when your Lordships' House set up its Select Committee. The next examination of the evidence was conducted by three retired airline captains who are Fellows of the Royal Aeronautical Society and members of its flight operations group. Although these three gentlemen point out that their conclusions are their own and not those of the Royal Aeronautical Society as a body, they came to the following judgment:"In that event, their verdict could not stand and it should be revoked or suspended pending a reopening of the inquiry".
Finally, we come to the man who had the final word in accepting the Air Marshals' verdict at the time, the then Defence Secretary, Sir Malcolm Rifkind. This is what he says about it now, seven years later. He states:"The history of this episode demonstrates clearly that this was certainly not a case of 'absolutely no doubt whatsoever'. A call to the Secretary of State to initiate further investigation and/or to set aside the accusations of gross negligence would go a long way to redressing a glaring injustice".
So far then, we have the conclusions of the initial Royal Air Force Board of Inquiry, its two immediate reviewing officers, the civilian fatal accident inquiry, the House of Commons Public Accounts Committee, the conclusions of a former Lord Advocate and of three Fellows of the Royal Aeronautical Society all concluding that the air marshals' verdict was unsafe and that it certainly did not fulfil the requirement that it was based on "absolutely no doubt whatsoever". The only two people in this story who reached and insist upon the verdict of gross negligence are two senior Royal Air Force officers who, while they were almost certainly acting in good faith, had no evidence which was not available to the initial board of inquiry. Their verdict was therefore based entirely upon their own judgment. They had no evidence, as I say, that was not available to the original board. It seems to me that this judgment is just not good enough to convict two young Royal Air Force officers of the crime of gross negligence resulting in their own deaths and those of all their crew and passengers. That, indeed, was the opinion of the Select Committee of this House, whose report unanimously concluded,"If I had been aware of the significant problems that had been experienced with the Chinook, that would have raised considerable doubt in my mind as to the wisdom of accepting the finding of gross negligence against the pilots".
This is almost certainly the last chance that your Lordships will have to express an opinion on this matter. Certainly, I have no intention of bringing it back to this House. But I do not believe it right that the executive, or one of its departments of state, should he able summarily to reject the report of a Select Committee of this House on a matter of this importance. I hope that your Lordships agree with me and that you will say so loud and clear. The Government would be wrong to think that their decision not to accept the conclusion of the Select Committee is an end of the matter. They will not he allowed to rest until this manifest injustice has been erased from the records. That said, I insist that none of my approach to this whole affair is any form of attack on the present Government, the Ministry of Defence, the Royal Air Force or even the two air marshals at the centre of the case. As a former professional soldier, I recognise the importance of the chain of command and of service discipline. I accept that the air marshals carried out their professional duty with integrity and responsibility. I just happen to believe, like almost everyone who has examined the evidence, that on this occasion their judgment was faulty. That was the view of the Select Committee of this House. In effect, the two pilots have already been exonerated. My own view is that the two pilots have, in fact, been totally cleared of the accusation of gross negligence, and that the Government's decision not to accept that is fatuous and irrelevant. But the fathers of the pilots insist, understandably, that the verdict should be formally set aside; and it is that which I now call upon the Government to do. I conclude with the final words of the Select Committee report, at paragraph 176:"the Air Marshals were not justified in finding that negligence on the part of the pilots … caused the crash".
We shall never know. Nor will anyone ever know. There was no black box on the aircraft, and the aircraft was almost completely destroyed. There were no survivors and no eyewitnesses. No one will ever know what was the cause of the accident—certainly not beyond any possible doubt. I beg to move. Moved, as an amendment to the above Motion, to leave out all the words after "House" and to insert "accepts the report of the Select Committee on Chinook ZD576 and calls upon Her Majesty's Government to set aside the finding of gross negligence against the two pilots".—(Lord Chalfont.)"How could it be that a very experienced crew, having planned to fly VFR, having taken when probably visual with the Mull the appropriate steps to alter course, when there was nothing to prevent them flying northwards within sight of the coast, flew into the Mull? It is as Sir John and Sir William speculatively described 'incomprehensible' and 'astonishing'. We shall never know".
My Lords, the Royal Air Force is the youngest of our services, but it quickly excited in all of us an admiration equal to that for the other services. The reason is clear, is it not? In peacetime or in war, air crew risk their lives in a particularly dramatic way. When things go wrong in an aeroplane, sudden death is often the outcome. Air crew, and pilots in particular, who run that risk and suffer death can surely expect two things of their country. The first is that the widow they might leave behind and their children, without a father, should not be left in need. The second is that their reputation should be protected. Those two expectations call for a system that provides a proper basis upon which to assess the presence or absence of negligence when the dead pilot cannot defend himself.It was surely for that reason that the government of the day agreed that when such negligence might fall to be investigated, the standard of proof should be to the very high standard: "absolutely no doubt whatsoever". That is not legally complicated. It can be readily paraphrased: evidence as a result of which there is the conclusion of negligence or otherwise "completely without doubt of any kind". If that is the test, we should remember not only its nature but its objective: to do justice to dead servicemen. That test is at the heart of this inquiry. It is not legal jargon. It is a concept of fairness and justice. It is with regard to that test that this House should consider our report and the conclusions that it chooses to draw from it. I turn to the report. The five members of the committee all took the view that this was probably the most onerous committee task that any of us had undertaken in this House. We undertook it in a quasi-judicial manner. We examined all the evidence objectively as it existed at the time of the RAF's conclusion and as it exists now, after our further inquiry. I stand by our unanimous conclusions. I have carefully considered the Government's response. Being a mere lawyer, and not enjoying the skills of my noble friend Lord Tombs, I am reminded of Mark Twain's response in The Adventures of Huckleberry Finn:
The facts were limited; the suppositions to be conceived were fragile. Our conclusion reflected that state of affairs; namely, that we were not of the view that the air marshals were justified, on the facts and suppositions that arose, in concluding that there was absolutely no doubt whatever about the negligence of the two pilots. I propose to say no more about the detail of our report. This debate is surely complementary to it and not in substitution for it. What is significant to me are the concerns which arise, I hope, to fair-minded people from the investigation that we carried out—concerns of whose substance I gave prior notice to my noble friend the Minister. I shall deal with them briefly. I understand that the investigation process within the RAF does not reflect the practice of the other two services. It was criticised in the Tench report years ago and has not been adequately reformed. It needs reform. It is a process designed to establish truth in so far as that is feasible—to protect the dead and, if necessary, to find negligence if proven. That process demands standards higher than those that I found in the RAF system. I turn to the search for evidence. Twenty-nine people died in the Chinook crash; it was a terrible disaster. We would expect, first, that simulations would be kept within their proper intellectual limits. Based on thin facts and fragile suppositions, they cannot be any stronger in suggesting what might have happened than the material that circumscribes their value. Secondly, why was the civilian investigating arm in air crashes not fully and completely involved in a military inquiry into an RAF crash in peacetime? I can see no reason why not, but I have formed the view—which, I readily concede, may be mistaken—that the Air Accident Investigation Branch, which is expert in the field, took a subservient role in the investigation by the RAF. I was also concerned about the range of evidence pursued in the RAF inquiry. As a layman, I could not understand why the investigating officers had not consulted expert flyers who were used to the Chinook helicopter, who had experience of it and who could give their views about what may or may not have happened. One, soldier A, gave us his views. I have the leave of my noble friend Lord Hooson, who is absent, to confirm his view, which I share, that this was a most compelling and convincing witness: a serving soldier experienced with such aircraft who was sure that negligence had not been proven. In my view, the search for evidence was inadequate. I turn to the role of the manufacturer and supplier. The use of—in this case, the sole reliance on—the expertise of those who provided the equipment that may have been at fault is surely unacceptable. It would not be acceptable in commercial life. There, outside experts would be used. They can and should be used in this form of military inquiry. That they were not may reflect an inevitable and perfectly understandable bureaucratic process within the Ministry of Defence, which is accustomed to long-term and regular dealings with its manufacturers and suppliers. That may be give great benefits, but when 29 people die, something more is required. To argue that there is no practical alternative—as I hope will not be argued—is to demean the aeronautical expertise in this country that produced the jet and radar. I turn to the concept of the chain of command. That concept is essential to military efficiency. I see no basis for its involvement in a system of military justice. It is difficult to accept that, when the original board and the initial reviewing officers found no negligence under the test to be applied, the air marshals could simply reverse that conclusion—with integrity, I accept, and on their honest review of the evidence, but not having heard any of it and unable, presumably because of the weight of their duties, to give it the same degree of attention as had the board itself. I am reminded that many military men need conclusions,—they look for them—but I remind them of Thomas Huxley's version of scientific rigour. He said:"The more you explain it, the more I don't understand it".
That is a good lesson. I turn to the role of the Ministry of Defence. Perhaps it was inevitable, as I fear may have been the case, that after eight years, with Minister after Minister and batteries of civil servants being sucked into the debate, some of them lost objectivity. They became so embroiled in the matter and its political ramifications that a mind set and fixed views may well have set in. Surely, if we are discussing military justice, the Ministry of Defence must deal with matters strictly at arm's length. Why are all those considerations so important? Because our services depend on the morale of our serving men and on their sense of justice in the military arm of their services. On page 38 of the committee's evidence, soldier A, who is a senior officer, states:"My business is to teach my aspirations to confirm themselves to fact, not to try and make facts harmonize with my aspirations".
We Peers and generals are not today debating a technical matter; we are debating matters that affect the morale of our serving men. Lastly, I turn to the use of a committee of this kind. I voted against it, but when I was asked to serve on it, I agreed. I voted against it for three reasons. First, I found it difficult to envisage a role for a committee of this House investigating a specific factual problem. I wondered whether that was within our compass and whether we were properly equipped to do that. Secondly, it struck me—this remains so—that it was a semi-judicial exercise. Therefore, thirdly, I was concerned that when we reported, our conclusions should not become the subject of political debate of a level that did not reflect the gravity of the matter. I fear that we may have achieved that result. It remains my considered view that, should the House consider such a committee to be appropriate in future, it should be in only the most exceptional circumstances, in the most clearly prescribed way and on the basis that the House will treat the conclusions of that committee with the greatest respect, if it has done its work properly. Twenty-nine people died. Every reasonable person thinks to himself that there must be an explanation—either people were negligent or there was aircraft failure or a mixture of the two. We search for a conclusion. However, to the inquiring, objective mind, a doubting investigation and a willingness to indulge in scrutiny ensures a fair result. Such an approach may mean that, because of the state of the facts, we simply cannot say what happened. We cannot find the pilots negligent; we cannot condemn the equipment. I regard that not as a failure of the inquiring mind but as a compliment to its integrity, if the evidence is inadequate to reach a conclusion that meets the test: absolutely no doubt whatsoever."Those who have read the aircraft accident summary I would consider to feel a sense of injustice and those who have read the full Board of Inquiry most definitely a sense of outrage, and that is the feeling, as far as my perception goes, of the grass-roots level".
My Lords, can the noble Lord tell your Lordships what evidence he has that the air marshals paid less attention to the matter than the original board of inquiry?
My Lords, I hoped that it was by the exercise of common sense. The RAF board or inquiry spent weeks investigating witnesses, going to the site and investigating material. I imagine that our air marshals have many serious duties to perform and could not devote the same amount of time. It is, simply, a practical conclusion, not a critical comment.
My Lords, I have a wife whose health is such that she cannot be left alone. When I retained my carer's assistance, I had not contemplated for one moment that the debate could go on until midnight. Accordingly, I asked the noble Baroness, Lady Park of Monmouth, whether I could come in before she spoke. Generously, she agreed. I then got the concurrence of the noble Lords, Lord Bach, Lord Redesdale and Lord Chalfont, the noble and learned Lord, Lord Jauncey of Tullichettle, the noble Earl, Lord Attlee, and, of course, my Convenor, the noble and gallant Lord, Lord Craig of Radley. I mentioned the matter to the noble and learned Lord the Leader of the House, and he was content for it to be left to the House. So, I ask the House's leave to intervene at this stage. I apologise for having so incompetently overlooked the timing aspect of the debate.
My Lords, the House gives leave, of course. I am sure that I speak for the House in that.
My Lords, fellow feeling makes us wondrous wise. Like the Minister and the Secretary of State, I have been obliged to argue the unarguable. The scars take time to heal, but the memory lingers on. More recently, I have had to listen to such arguments, always—I hope—conscious of the wise advice of that great judge, Lord Reid:
I adopt everything that the noble Lord. Lord Chalfont, recently stated. Had he been addressing the High Court on an application for judicial review of the Minister's decision, he would properly—and forensically, of course—have used the term "perverse" to describe the Minister's decision. We, of course, rarely use such harsh phraseology in your Lordships' House. However, occasionally, we call a spade a spade, and I hope that I will be forgiven if I do so. I go back a stage before that dealt with by the noble Lord, Lord Chalfont. I propose to limit my submissions to your Lordships solely to the legality of the air marshals' decision. Although, like others, I do not, in any way, attack their integrity, I assert strongly and firmly that, whatever they may have thought, their decision was, quite simply, unlawful. I can, as I have done in the past, explain the position shortly and simply. I shall start with matters that are common ground. First, the air marshals' authority to make a finding of guilt against the deceased pilots was extremely—I underline the word "extremely"—limited. As your Lordships have heard so often, the limitation was to be found in the RAF Flight Safety Manual AP 3207. It provided—I repeat again the vital words—that:"Don't interrupt. You are paid to be irritated".
The word "absolutely", placed in front of "doubt", emphasises that the doubt is unqualified and is unrestricted. Doubt is not limited to cases of "reasonable doubt". The word "whatsoever" after the word "doubt" means that there can be no doubt of any kind. The onus of proof that lay on the board of inquiry required certainty. That was in no way surprising, as the inquiry was in private, those acting on behalf of the deceased were not allowed representation and there was no appeal. Hence the present position that the board of inquiry is not permitted to apportion blame where the pilot is dead. For the air marshals' verdict to be considered valid, two requirements must be met, each of them vital. The air marshals must have concluded, first, that it was a case where there was "absolutely no doubt whatsoever" and, secondly, that there was an adequate amount of material available to support such a decision. It is my contention that the air marshals fell at the first fence, the stage before that dealt with by the noble Lord, Lord Chalfont. Their decision would be ultra vires—beyond their powers—and, therefore, a nullity. It would be set aside by any court on the basis of ex debito justitiae—because justice so demands. Nowhere in their judgments did the air marshals say expressly or imply that it was one of those rare cases where there is "absolutely no doubt whatsoever". For the nearest that they got to that, I shall quote what Air Chief Marshal Day said on 5th March, 1995. Noble Lords should see the report of the RAF board of inquiry annexed to the Select Committee's report at pages 23 and 24. He said:"only in cases where there is absolutely no doubt whatsoever should a deceased airman be found guilty of negligence".
I stress the following words:"The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".
What has been said, quite simply, is that none of the factors or scenarios is of sufficient strength to provide a likely explanation. That does two things. First, it puts the onus upon the deceased, which is wrong. Secondly, it deals with probabilities. It does not deal with even reasonable doubt, let alone certainties. That is the only statement in which the air marshal vouchsafes his reason for exercising his limited power. His senior officer, Sir William Wratten, adds nothing at all. What perhaps is far more pertinent is the following statement in the air marshal's judgment."In my judgment none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".
"Difficulty", the word used by the air marshal, is a gross understatement of the task that faced him. What faced him was near impossibility, and that is something that he did not address. The only other part of the judgment which I think is worthy of quoting is:"Therefore, while aware of the difficulty of attributing negligence to deceased air crews I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".
I entirely agree with him. It is incomprehensible and that merely shows that it cannot be a situation in which there is "absolutely no doubt whatsoever". I made those submissions in the debate on the Motion for a Select Committee on 5th March 2001. I repeated them in the following month where a further attempt was made to set up the Select Committee. On neither occasion did the Minister answer my points. I, therefore, at the risk of boring the House, set them out again on 19th June 2002 on a Motion that related to the Army and Air Force and Naval Discipline Acts. Again, they were not answered. Nor were they answered by the Minister in his reply to the Select Committee on 22nd July 2002. Literally, in the last few seconds permitted to question the Statement in this House, I asked two questions. These were, first:"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered higher ground".
The second question was that it is nowhere stated that there was,"Nowhere in their judgments did the air marshals recognise the vital limitation on the lawful exercise of their power. If the Minister does not agree, perhaps he will identify where it is so stated".
In his reply dated 30th July, the Minister, the noble Lord, Lord Bach, repeated that Sir John did not use the words "absolutely no doubt whatsoever" but claimed that his recognition of the vital limitation on the lawful exercise of his power was to be found in that very sentence which I have quoted to the House on no fewer than three occasions; namely,"absolutely no doubt whatsoever that the deceased airmen—or one of them—were guilty of negligence. If the Minister does not agree, will he please identify what was the relevant statement in this regard?".—[Official Report, 22/7/02; col. 24.]
He further prayed in aid what the air marshal had said some seven years later to the Select Committee when, of course, everybody was focusing on this very high standard of proof. In substance, the Minister, the noble Lord, Lord Bach, was forced to concede that the contemporary documents were dead against him. While paying lip service to the obligation not to find the deceased pilot negligent unless there is "absolutely no doubt whatsoever", the Secretary of State and the noble Lord, Lord Bach, who basically repeated the former's Statement, were at pains to try to restate the obligation in terms that fitted in with the terms of the air marshal's decision. There are frequent references to plausible "explanations". In col. 15 of Lords Hansard it is there stated:"Whilst aware of the difficulty of attributing negligence to deceased air crew".
That overlooks that the so-called plausible explanation provided by the air marshal is based not on certainty but, as previously stated, on probabilities. Further, it is reversing the onus. Moreover, it proceeds on the basis that there is no room when applying the test for the simple statement:"It follows from this strict standard of proof that if there is another plausible explanation for what took place other than the one accepted by the board of inquiry, the conclusion cannot be allowed to stand".
At col. 16 of Lords Hansard, the entirely undefined phrase "honest doubt" is introduced. No explanation is given for that phrase. Again, at col. 16 is the phrase:"We just cannot produce any explanation which involves a certainty".
If the obligation is to find a "realistic explanation" only, then it would be a far lower onus than the certainty required by the then regulations. In col. 697 the Secretary of State states:"The only realistic explanation therefore is that found by the reviewing officers of the board of inquiry".
Yet the Secretary of State had conceded earlier that the test he had to apply was a heavier test than reasonable doubt. The Secretary of State and the noble Lord, Lord Bach, totally failed to recognise that the air marshal's explanation itself was highly improbable. I should like to end with a quotation from the foot of page 1 of Enclosure 1 in the review of the RAF Chinook accident dated 2nd June, concerning further work undertaken by Boeing. Boeing there states:"The right way is to look objectively at known facts that can be established beyond any reasonable doubt".—[Official Report, Commons, 22/7/02; col. 697.]
I trust the House will demonstrate its refusal to accept the undoubtedly perverse decision of the Secretary of State and the noble Lord the Minister in this House by strongly supporting the amendment tabled by my noble friend Lord Chalfont."It is rarely known with absolute certainty exactly what all the reasons for an aircraft accident are. One can only determine a most probable cause as many accidents in the past have amply demonstrated, even with cockpit voice and flight data recorders there is always room for doubt. Consistent with our understanding of the RAF Board of Inquiry's charter, as the investigation authority in this case, a determination of probable cause…was made based on a preponderance of evidence".
Baroness Park of Monmouth
My Lords, we have a long and distinguished list of speakers and I shall be brief. I have spoken in many earlier debates on the issue in the long battle over the years. It was a tragedy in which I lost friends and a tragedy which is important in human terms both for the reputation of the men involved and for their families, for the honour and integrity of the service to which they belonged, and for other airmen in the future.Therefore, I shall say only that I agree entirely with the Select Committee's view, reached with so much care, that the verdict of gross negligence was unjustifiable. There was doubt. I shall strongly support the noble Lord, Lord Chalfont, should lie press the matter to a vote.
My Lords, the RAF Board of Inquiry report into the loss of Chinook ZD576 was released eight years ago and for those eight years the contents have been strongly disputed, not least in your Lordships' House. It would be entirely understandable if some of your Lordships were beginning to experience Chinook fatigue.I must begin by expressing my admiration for those who serve, or who have served, in the Armed Forces. They place their lives at the country's disposal and in return they ask for nothing more than that this country's safeguards, as best it can, their lives and their honour. They of course include many of your Lordships and not least the noble Lord, Lord Chalfont, who leads the pursuit of justice in this case. We will never know with certainty the details of the last seconds of the flight of ZD576. However, when your Lordships entrusted the case to the noble and learned Lord, Lord Jauncey, and his distinguished and eminently qualified committee, the noble Lord, Lord Chalfont, and his substantial group of supporters made it clear that with the agreement of the families of the deceased pilots they were willing to accept the findings of the Select Committee. They further stated that in the event that the committee supported the findings of the original Royal Air Force Board of Inquiry, they would not pursue the matter further. The Government regrettably gave no such undertaking and have now rejected the unanimous findings of the Select Committee. Instead, they commissioned Boeing to carry out a second simulation to try to meet some of the criticisms of the Select Committee. This second simulation actually disproved much of the first simulation on which the reviewing officers' verdict so heavily relied. Your Lordships may wonder why the Government did not promptly and graciously concede the case. I will return to that later. In the past three years, I have spoken in several Chinook debates and never once have I failed to mention that it is certainly possible that the two pilots, Flight Lieutenant Tapper and Flight Lieutenant Cook, were guilty of gross negligence. However, the RAF regulations permit the reviewing officers such a finding only in cases where there is "absolutely no doubt whatsoever". That means no doubt about the objective evidence, not no doubt about the reviewing officers' minds about their own subjective opinion. This standard of proof is higher than that in a criminal court. It equates to absolute certainty of the facts. Obviously, if there is any other reasonable alternative explanation, the standard of proof for negligence is not met. To understand the difficulty of establishing the cause of the accident, perhaps I may remind your Lordships of a case which occurred just two years after the Mull crash. A similar Mk2 Chinook was flying in the United States when in mid air it turned upside down and hurtled towards the ground. The crew wrestled with the controls to try to save the helicopter. Just 200 feet above the ground, the Chinook miraculously righted itself and the helicopter landed safely. The crew were euphoric, as indeed they might have been having just escaped certain death. The US Army and Boeing had a totally intact helicopter to which they applied all their massive resources. They analysed it piece by piece to try and find the cause of the near-fatal accident. Their conclusions were that they could not establish the cause but they suspected the possibility of contamination in the hydraulic system. The wreckage on the Mull revealed that the hydraulics system contained slivers of metal and other debris. This may or may not have been the cause of the accident, but it is a valid explanation which cannot be positively eliminated and which, therefore, disallows the certainty which is mandatory for a gross negligence verdict. The Mk2 Chinook helicopter was put into service only two weeks before the fatal flight. At that time both pilots expressed to their families their deep concern about having to fly the Mk2 Chinook on operations in Northern Ireland when it had not been fully tested and certified. Indeed, Boscombe Down was unable to complete the testing of the FADEC electronic engine control system. The possibility of a transient FADEC failure is consistent with known FADEC problems and with the known facts of the accident. It is yet another valid explanation which cannot be discounted or eliminated. Engine failure warning signals appeared, lasting on average seven or eight seconds. Group Captain Crawford, then station commander at RAF Odiham, wrote:
The MoD has always maintained that if others could come up with new evidence it would re-examine the matter, even though there was already a great deal of evidence for several alternative explanations. Your Lordships will have noted that I use the word "explanations", whereas I refer to the reviewing officers' verdict as a "hypothesis". You may agree that a hypothesis is a proposition, the truth of which has not been proved but which is used as a starting point for an inquiry. The examples of other possibilities, such as contamination of hydraulics and FADEC malfunction, are founded upon known facts and I have therefore used the word "explanation". On what is the AOC's verdict founded? Not evidence in the wreckage; not witness testimony; certainly not in the pilots' distinguished flying records. It is founded on a need to explain the cause of the accident. It hardly deserves to be called a hypothesis. It is the AOC's guess—and it is a bad guess. What is more, the MoD insists that this verdict can be overturned only by the absolute proof of another explanation. I have demonstrated that there are several alternative explanations, but now I want to deal with the reviewing officers' hypothesis. It was based upon the first simulation carried out by Boeing. Their theory was that the aircraft was not in the correct position just before it reached the Mull and inadvertently went into cloud when it was operating under visual flight rules. This simulation derived data primarily from the physical evidence of the crash and from the Racal Decca TANS navigation system. From these they were able to determine approximately the height of the helicopter and also the speed. The height was 468 feet and from the start of the final manoeuvre the minimum speed was 150 knots. Also, they determined the approximate position of the helicopter. Unfortunately, the helicopter data used for the first simulation were not the Mk2 model and were criticised by the Select Committee. So the MoD decided to ask Boeing to carry out a second simulation. What did it find? First, the height calculation could have been in error by 200 feet. Secondly, the most likely speed of the helicopter was 135 knots, not 150 knots. Thirdly, the first simulation indicated that the engines were at mid-power, but the second simulation indicated that the engines were at maximum or even emergency power. Fourthly, Boeing also admitted that the simulated climb angle at which the helicopter was supposed to be flying in the last instant before the crash is not consistent with the evidence from the wreckage. Fifthly, Boeing drew attention to the highly unusual position of the left rudder pedal, on which experienced helicopter pilots had already commented. It was not mentioned in the first simulation. Sixthly, perhaps most surprising of all, Boeing was unable to explain a slight turn to the right when the pilots had planned a 12 degree to 15 degree turn to the left when they made their waypoint change. I am well aware that the Boeing management conclusions on the second simulation do not tie in with those facts. I leave your Lordships to speculate why. Your Lordships will recall that in their appearance before the Select Committee the reviewing officers based the defence of their verdict on the evidence of Boeing's first simulation. Given that Boeing has now exposed the flaws in that simulation, there are excellent grounds for the Government to set aside the verdict without in any way impugning the integrity of the reviewing officers. As far as the TANS equipment is concerned, this was an essential piece of equipment used by the board to reconstruct the flight path of the helicopter, yet the manufacturers state that the equipment is not designed to provide historic data, but such data may indicate—not prove—the situation at a time earlier in the flight. As the TANS computer played such an important part in the reconstruction, I must mention an incident that occurred on 13th July 1995, when a Chinook Mk2 helicopter was tasked to perform an over-flight of Flight Lieutenant Jonathan Tapper's memorial. The RNS 252 SuperTANS displayed an error of just 210 feet. yet the crew who were in visual contact with the ground, could see that the TANS was more than two nautical miles in error. The TANS system believed that it was some 12,000 feet away from its actual position. If that Chinook had crashed and, the air marshals had used the retrieved data as facts to reconstruct the final flight path, their interpretation of events up to the crash would have been displaced from reality by some two nautical miles. If such inaccuracies can occur in this equipment, is it not clear that it cannot be used to establish undisputed facts with "absolutely no doubt whatsoever"? I turn to the final matter I should like your Lordships to consider. From my first introduction to the subject have been puzzled why the reviewing officers were able to conclude with certainty amid such contradictory evidence that there was "absolutely no doubt whatsoever" as to the cause of the accident. We must remember that the reviewing officers were the judge and jury of the case; that the defendants were deceased and had no legal representation; and that there was no right of appeal. Under that so-called system of justice the pilots were effectively found guilty of manslaughter. I take your Lordships back to early February 1995, just before the report was considered by the reviewing officers. An edict was issued from on high, which I shall paraphrase as saying that in too many accidents in recent times, pilots who may have been negligent have been allowed to get away with it and it must stop. Here I quote from the edict itself:"at the time of the accident the cause of this was not understood and such spurious signals would have caused the crew considerable concern, particularly if they were over water with no obvious areas for an emergency landing. Such a warning would have also required an urgent and very careful check of the engines, instruments and the incomplete Flight Reference Cards".
Such a strong edict might have influenced, and been intended to influence, those officers reviewing the conclusions of the board of inquiry, which took place in February and March 1995. The edict is indicative of a mindset. It indicates that the command was predisposed to a disciplinary approach to flight safety. The RAF calls this, "flight safety by intimidation". However, such an edict could properly form part of a system of approach to flight safety which reviewed every aspect of flight operations, but such a review was never ordered. The author of that devastating, edict was none other than one of the judges in the case, the reviewing officer Air Marshal Sir William Wratten. I started by declaring that our servicemen who placed their lives in our hands trust us to afford them the highest standards of justice and to honour the memory of those who die in our service. Let us not fail the pilots of Chinook ZD576."I wish to put this policy into practical effect by ensuring that formal disciplinary action is taken whenever, following Board of Inquiry Investigations, clear evidence emerges of unmitigated indiscipline or negligence. The increasing incidence of such cases suggests that past practice, which has been to shun the disciplinary approach (even in some quite serious cases) is no longer appropriate to the high standards the Royal Air Force is entitled to expect from its aircrew".
Lord Craig of Radley
My Lords, I welcome and support the Government's response, which counters effectively and convincingly the Select Committee's main points. That is not to say that the committee—and I have great respect for all its members—has not tried hard to comprehend these complex issues. I propose to confine my remarks to some additional points where the committee's approach appears mistaken.First, it did not follow all the statutory rules and guidance that govern boards of inquiry. Given that, it is perhaps hardly surprising that the committee did not agree with the findings of the reviewing officers who were, of course, bound by those rules. The committee, and others who have not agreed with the air marshals, judged the board's findings by comparison with civil and criminal courts standards of proof. But a board of inquiry is not a court of law. Members are appointed for their aviation expertise related to the accident, not as lawyers or legal experts. Their duties, the responsibilities of a board, are nevertheless set in statute in Section 135 of the Air Force Act 1955 and the Board of Inquiry (Air Force) Rules. I should like to draw your Lordships' attention to just one of several key stipulations in these statutory rules. On evidence, it states:
To judge the findings of the board against those used in a court of law is as wrong as, say, applying the rules of rugby to decide if a foul was committed in a football match. The findings must be judged by the statutory rules for a board, and using all the detailed explanation and guidance to boards that are given in MoD Publication AP3207. I was taken aback by the Select Committee's departure from this approach. The statement that,"A board may receive any evidence which they consider relevant to the matter referred to the board, whether oral or written, and whether or not it would be admissible in a civil court".
was never drafted to be compared with wordings applicable in the courts. The context of the statement was to describe a test which, while very high, had still to be capable of a practical application. Instead, the Select Committee introduced its own yardstick—"only when there is no doubt whatsoever should deceased air crew be found negligent",
from which to derive its own opinion. In the context of a fatal aircraft accident, this test is highly unlikely to be ever achievable. The Select Committee moved the goal posts. A finding of human failure in a board of inquiry against a pilot or crew who survived an accident is not the basis for any charge under the Air Force Act. The next stage would be to call for a summary of evidence, and such evidence is taken according to the rules of evidence in court proceedings. Based on that evidence, and not on the board of inquiry, a decision whether to prosecute would be made. So courts martial and summary punishment processes are dealt with separately from a board of inquiry. No finding of manslaughter arises from the Chinook board, as some have claimed. I was surprised that the committee criticised the appointment of Wing Commander Pulford as board president because he had not previously conducted a board of inquiry. But the Royal Air Force has had few major accidents in recent years. Only one affected the Chinook fleet, and that took place over five years before the Mull accident. Previous board experience of inquiries into fatal accidents is thus extremely limited. Of far greater importance in an inquiry is current knowledge of the operation of the aircraft type in question. On those grounds, Wing Commander Pulford was very highly qualified—one of the most experienced helicopter pilots of his rank in the Royal Air Force. Expert advice was constantly available to him from flight safety and technical staff throughout the inquiry. I believe that the committee's criticism of his selection is both unfair and unwarranted. The committee questioned, as others have done, the validity of relying on the Boeing work to help to deduce what had been happening in the remaining seconds before the crash. But as Boeing itself states, its work was an analysis tool and should not be considered defective, as the Select Committee thinks. The board was justified in considering that work to help to reach its conclusions. The air marshals' findings relate to the airmanship displayed on this tragic flight, and the account that the crew took of the forecast and actual weather over and in the vicinity of the Mull. The Select Committee accepted that Mr Holbrook, the yachtsman, was a reliable and convincing witness. What it should have appreciated from his witness statement, and from other witness statements, was that the cloud cover—its base and extent—and forward visibility were in a state of flux. A strong wind of 25 knots would contribute to frequent, possibly rapid, changes in cloud base and local visibility. That was the forecast; it was not unexpected. The Select Committee seems to have presumed that the crew faced relatively static weather conditions. But, given the forecast, witnesses' descriptions of the conditions at the time of the accident and the strong tail wind, the crew would have had little or no time to make a safe transition from visual flight rules to instrument flight rules if the need to do so proved suddenly to be unavoidable. I do not consider that the Select Committee has alighted on new weather evidence. The evidence available to the board, and its experience, merely support the additional comments of Mr Holbrook. The Select Committee refers to the problem of a distraction, and considers that the crew could have faced a technical problem, for which there is no evidence. If the crew found themselves in Instrument Met Conditions, which they had been warned to expect near the Mull, in continuing to fly below the safety altitude, they failed in their duty of care by not adhering to instrument flight rules in good time. It is no defence to opine that they could have been distracted, or worse, by a technical malfunction. If they had been at, or above, safety altitude, their attention could have been fully devoted to dealing with the problem without any risk of flying into the mountain. Peacetime flying requires full and unambiguous adherence to this all-important flight safety rule. Even a minor deviation is a serious breach and unprofessional in qualified aviators. The Select Committee also said that if the crew were to be deemed negligent, they,"it requires all other plausible explanations for the crash to have been positively excluded",
The MoD rightly responds that this is an unrealistic and inappropriately narrow approach to the question of negligence. The guidance in AP 3207 as a whole must be considered. The quoted words are from one of two questions in the AP that a board must first ask itself in order to distinguish between irregularities that had no direct connection with the cause of the accident and those that had. The crew would know that flight below safety altitude would be dangerous. So it would be right to conclude that human failings must be considered. That was the point of this question. Negligence is defined for the board in AP 3207 as,"ought to have foreseen that their action would in all probability occasion the final event".
The Select Committee does not appear to have applied this test; it used its own. Good airmanship is a combination of sound judgment and the proper taking of care. The two pilots certainly had the necessary skill and knowledge to maintain safe flight. With passengers on board, their duty to take care was explicit. But, the fact that, by waypoint change, and faced with marginal weather at the Mull, they had not adequately slowed down, turned away or climbed to a safe altitude, regrettably confirms an act of negligence on this particular mission. I agree with the MoD's reactions to the Select Committee's report, while once again expressing my sincere and profound sympathy to the families of both pilots and all the other victims of this appalling disaster. I hope that, on reflection, and having listened to the debate, the noble Lord, Lord Chalfont, will withdraw his amendment, which can do nothing to undo the correct decisions about negligence. I hope, too, that those who criticised the two air marshals in the past will now agree that they discharged their statutory duty and stood by their decisions, in spite of much pressure over a prolonged period, with moral courage and integrity. That does credit to them and to my service"The omission to do something which in the circumstances a reasonable person would do; or the doing of something which in the circumstances a reasonable person would not do or do differently".
My Lords, before the noble and gallant Lord sits down, why is a finding of gross negligence which resulted in the death of 29 people not equivalent to a finding of manslaughter?
Lord Craig of Radley
My Lords, because this is a board of inquiry, not a court of law. Only in a court of law can there be a charge and a finding of manslaughter.
My Lords, it verges on impertinence for me to say that I agree with every word that has just been said by the noble and gallant Lord, Lord Craig. It was my sad duty five years ago to make my first remarks in your Lordships' House on the subject of Chinook. It happened to be the first matter that came across my desk when I returned to the Ministry of Defence in 1997. I was therefore interested in the remarks of the noble Lord, Lord Brennan, about Ministers getting sucked into these matters and, from time to time, being faced with inbred ministerial and departmental attitudes and being affected by political considerations. I resent those remarks. I am sure that none of my Conservative predecessors as Ministers was affected by any of those considerations and I am sure that none of my successors who have spoken from the Dispatch Box under this administration has been affected by considerations of that sort. Had I been so affected, it would have been an ideal opportunity for me to demonstrate that I could dissent from my Conservative predecessors. I found myself unable to do so.With regret, I find it impossible to acquit the two pilots of negligence in this case. I do not wish to go over again any of the things that I have said before in your Lordships' House. There is one point that I ought to make in response to the layman's argument brought up vividly by the noble Lord, Lord Chalfont, at the end of his remarks. I congratulate the noble Lord on his persistence and courage in bringing this matter once again to your Lordships' attention. I think he was quoting from the last paragraph of the Select Committee report when he asked how one could conceive of two such skilled, able and experienced pilots making such an error. I am afraid it is very easy to conceive of able, experienced people making mistakes. It happens in the air every day. Pilots well know that from time to time, there but for the grace of God go they. Luckily, they make their mistakes in non-life-threatening circumstances. I realise that I speculate. I am not offering this as a solution to what may have happened in the air, but when there are two pilots on a flight deck it is by no means unknown for confusion to arise suddenly as to who is in control. It may take a little time for that to be sorted out. We are led to believe that there might have been an emergency of some sort on the flight deck. I do not say that that is a normal occurrence, but it is certainly not unprecedented on a flight deck with experienced people. It happens on civilian airliners as well. I regret that I have no option but to reaffirm the conclusion that I first came to as a Minister when considering the case.
The Earl of Onslow
My Lords, the noble Lord has been saying that certain things are possible or probable. The argument is not about possibility or probability. The noble and learned Lord, Lord Ackner, talked about the need for absolute proof with no doubt whatsoever. The moment the Minister — sorry, the recently retired Minister—says that the cause could possibly be this or that, he concedes the whole case.
My Lords, I do nothing whatsoever. I have made it absolutely clear that I regard it as inconceivable that there was any other cause. Various kinds of negligence could have been involved in the case that we are discussing. As I was about to say, I think that the Royal Air Force's language is unfortunate. I do not like the term "gross negligence". I think that "negligence" is quite enough without rubbing salt into people's wounds. I believe that the Royal Air Force has probably set itself too high a hurdle with respect to these matters. However, having said that, I repeat that I have absolutely no doubt whatever that the Government are right to reject the Select Committee's report.
My Lords, the primary Motion before your Lordships' House is that your Lordships take note of the Select Committee report. That is a serious enough Motion to consider but I find it absolutely extraordinary that we should have an amendment to such a Motion. I believe I am right in saying that that has not occurred for 24 years. Twenty-four years ago the issue concerned a constitutional matter and the amendment was moved by a member of the Select Committee itself. Therefore, I hope that the noble Lord, Lord Chalfont, will withdraw his amendment at the end of the debate.The Chinook crash is gathering the mythology associated with the "Birkenhead", the "Titanic" or the "Lusitania". That myth must be arrested and the basic known facts considered. We are looking for the facts—facts that can support the verdict that there was no doubt of the pilots' negligence. Sadly, there are no such doubts, however unlikely—as has been said on a number of occasions—it may seem that two such experienced and responsible pilots should have got themselves into such a position. What happened to other aircraft at other times and in other conditions is irrelevant. What happened in particular in the case that led to the Ministry of Defence suing Textron Lycoming in 1989, or in the RAF board of inquiry in March 1994, is quite a different matter. The FADEC system in the Boscombe Down incident has nothing to do with the matter when seen against the facts of the flight of ZD576 on that day. Noble Lords who know the conditions around the Mull of Kintyre from flying or sailing round it know how treacherous and variable they are. Chinook ZD576 was seen by a yachtsman at approximately 300 feet approaching the Mull in clear visibility. What happened thereafter with regard to the visibility is a matter of doubt and it is not clear whether or not the crew had seen the Mull. But they did fly towards the land without deviating from their track. If the aircraft had "pulled to the bells"; that is, exercised maximum power, on entering cloud 30 seconds before the eventual impact, it would probably have avoided hitting the Mull, whose maximum height is 1,463 feet. Here flight rules are quite clear. On moving from a state where visual flight rules apply—which is where the aircraft was seen by Mr Holbrook—into cloud where instrument flight rules apply, the pilot has two alternatives. He has to climb to the designated safety altitude, which is a height 1,000 feet above any obstacle within five miles of the track. Alternatively, he should turn through 180 degrees and get out of it. That is what should have happened in the conditions of cloud off the Mull, which is, as I say, a notably treacherous place. The first alternative—that is, to climb to safety altitude—may not have been possible because of restrictions on the use of the anti-icing equipment. Ice can build up on the engine intake surfaces. Before going into potentially icing cloud, the electrically heated rubber mats on the intake blankets should be switched on. It is understood that there was a flight restriction stating that the anti-icing should not be switched on except under operational conditions. Although the crash took place in June, it is at least possible that there was icing in the cloud. If there was any doubt, the pilot should have turned through 180 degrees and followed his previous track in reverse. The trouble was that they had an ETA to meet and restrictions on their flying hours. The pilots elected to carry on in the belief that they knew where they were. As we know, there were two pilots. The duty of one is always to fly the aircraft while the other provides lookout and assists with cockpit management. In cloud, everything goes dark and the pilot must look up to find where the top of the cloud is. When the aircraft nears the ground, the cloud turns green. All the indications are that that is what happened. The aircraft increased height from an estimated 468 feet 18 seconds before impact to 810 feet at the point of impact; that is, the rate of climb was 1,140 feet per minute, which represents a steep but not a maximum rate of climb. The aircraft did not at any stage turn. The whole point is that the pilots should never have got themselves into cloud in the first place. Once they were there, they should have turned or climbed instantly. It is unlikely that they were turning into icing cloud. In mitigation, it has to be said that the pilots might have been distracted; but that is not an excuse, particularly with two such experienced pilots, together with their crew. There is no reasonable doubt— possibly a stronger phrase could be used—that they were grossly negligent, however inconceivable such a verdict may be. They were in a hurry and decided to cut a corner, both vertically and horizontally. JSP (or joint service publication)318, the manual of flying, clearly defines safety altitude and states unambiguously what a pilot must do when he inadvertently enters cloud. He must climb above safety altitude or turn through 180 degrees. The pilots ignored all of that. It is true that there are a number of questions to be answered. The pilots were navigating by the relatively primitive TANS—tactical air navigation system—which did not at that time have a GPS input. Certainly, the Chinook had no effective radar. which would have enabled the pilots to see their position relative to the Mull. The lighthouse itself was a waypoint, and they must have wanted to overfly it to check their navigation. However, it was—or is presumed to have been—in cloud and they presumably did not see it. I have no knowledge of the quality of their "met" briefing at Aldergrove, which might have defined the extent of the cloud cover. None of that is any excuse for the pilots' actions. I do not believe that it is quite clear where they were going. Why was their course after the waypoint at the lighthouse considerably to starboard of the track for the next waypoint at Corran? It is not clear why they found it necessary to cut those corners, but there is no doubt that they did. For that reason, the verdict of the air marshals should stand and all the other considerations, although interesting in the context of the Chinook Mk2 in general, have no relevance to the accident. In any case, the argument in favour of the verdict of the air marshals is overwhelming. Noble Lords are being asked to "take note" of the Select Committee report. I hope that noble Lords will firmly oppose the amendment of the noble Lord, Lord Chalfont, should he choose to press it to a vote, which I hope he will not.
Lord Mackie of Benshie
My Lords, I suppose that I should declare an interest in that 60 years ago or thereabouts I spent six years in the Royal Air Force and have had an abiding affection for that service ever since.Of course, I have read our Select Committee's report. I was struck by the fact that the members of the committee spent a great deal of time trying to find obscure faults which could be to blame for the accident. I believe that they were perhaps motivated by the introduction of the noble Lord, Lord Chalfont, and that they were there to protect the pilots' reputations. Some of the evidence was most interesting. Witness A from the Special Forces branch and Squadron Leader Burke were both totally puzzled. They knew about these wonderful, complex aircraft. They could not understand it and went into detail about how such an accident might have occurred. After reading all the evidence, I asked myself how two experienced pilots—a whole crew who are very dependent on each other with a complex method of control—came to fly into a hill. The explanation given by the noble and gallant Lord, Lord Craig, appears to me to be correct. They failed to take action when they should have done and they thought that their rate of climb would clear the Mull straight ahead. It was a bad and fatal decision. They had flown for 20 minutes without trouble. They could have turned and gone round the coast but they chose to go over the Mull. As I said previously, they made a fatal mistake. Experienced crews do make fatal mistakes. I remember that that was driven home to me in war time by a story, which I shall tell your Lordships, about a Russian woman—a great sniper who had killed 150 Germans. In 1942 she came over on a tour of Britain. An experienced squadron leader—a regular officer who had done a tour of operations—took up a Stirling bomber and "shot up the aerodrome", as we called it, to demonstrate. He made the simple, fatal mistake of flying too low. He crashed the aircraft and killed all the crew. The Russian sniper lady burst into tears and had to be taken away because she was so distressed. That happened a long time ago but it has happened time and again. Experienced crews can make mistakes. Therefore, I conclude, with regret of course, that the verdict of the air marshals is correct.
Lord Guthrie of Craigiebank
My Lords, all of us recognise just how sad and tragic this case is. But I do not feel that it is anything like as complex as some have portrayed it to be. The noble and gallant Lords, Lord Bramall and Lord Inge, who unfortunately cannot be with us this evening in your Lordships' House, have asked me to say that they agree, and want to be associated with, what I am about to say.Early in their response to your Lordships' Select Committee report into this sad and tragic accident, the Government reiterated the statement made repeatedly and consistently by the two air marshals—the officers whose duty it was to review the board of inquiry proceedings. It is that negligence had occurred by the time that the pilots made the waypoint change. If they were in cloud, flight should have been in accordance with instrument flight rules: that is that they should have been at their safety altitude of 2,400 feet. Of course, they were well below that. If they were not in cloud, they had flouted the basic rules of airmanship by flying too fast and too close towards the cloud-covered high ground of the Mull of Kintyre. By definition, if they were flying in such visual conditions, they would have seen what they were doing; they would have known they were mere seconds from the Mull of Kintyre and that by continuing to approach it in that way, they had unnecessarily placed themselves in increasing jeopardy. In short, the pilots pressed on into the bad weather that they had been warned to expect in the vicinity of rapidly rising, cloud-covered high ground. I believe that it is as simple as that. It is most unfortunate that many, including with respect, the members of your Lordships' Select Committee, have lost sight of that central issue. In the judgment of the reviewing officers, by flying their aircraft in such a manner, the pilots ignored their pre-eminent duty. They had failed to take care. They had failed to do everything in their power to ensure the safety of their aircraft, passengers and crew. Such a failing in the demanding and unforgiving realm of aviation unquestionably constitutes negligence. Again, in the judgment of the two exceptionally experienced reviewing officers, both of whom I know personally, and whose judgment I have never doubted, that was indeed gross negligence. Moreover, the evidence rendered such a finding undeniable. There is no evidence to suppose that the pilots were not in control of their aircraft. They possessed the skill and knowledge to adhere to the basic rules of airmanship, but they did not do so. The negligence finding is therefore founded on the fact that they failed to take timely avoiding action on approaching deteriorating weather around the Mull of Kintyre, which they had been warned to expect. Those who have chosen to reach different conclusions have mounted no convincing argument against this analysis, an analysis repeatedly explained by the reviewing officers. Rather, they have insisted on focusing on any number of what I might call peripheral matters: in particular, the few seconds following waypoint change and immediately before impact—20 seconds or so. That is irrelevant in the context of a negligence finding. Moreover, the hypothetical emergencies that they claim might have arisen during those fleeting moments are implausible when tested against the known facts. In consequence, critics appear to have continuously changed tack. These peripheral matters have included a suggested failure of engine control system, jamming of the flight controls, contamination of hydraulic fluid, computer malfunctions and even a rushed and improper introduction into service of the Chinook Mk2 fleet in general. There is no convincing evidence to support any of those, as the Government's precise response details. It is sad that some critics of the finding of negligence—I am certainly not referring to your Lordships' Select Committee—have even stooped to attack the motives of the reviewing officers, suggesting a lack of judgment and even a cover-up behind the loss of their aircraft and 29 lives. A cover-up is a particularly shaming suggestion and discredits only those who make it. The air marshals determined in the direct pursuit of their duty that it was not permissible to avoid a finding of negligence by recourse to a hypothesis for which there was no evidence and which was revealed as wholly implausible when tested against the known facts. In this determination three successive chiefs of air staff—the heads of the Royal Air Force—endorsed their judgment. This is the honest opinion of experts. Those who admit to being laymen in aviation matters should, I feel, accept it as the right judgment. They might also acknowledge the anguish of the two air marshals who reviewed the case in having to reach the conclusions they did. Their sadness is overshadowed only by the bereavement of the families of those who lost their lives in this disaster. I am a relative newcomer to your Lordships' House and perhaps more innocent than some of the hardened parliamentarians sitting here. But I should be surprised, and think it unfortunate, if an element of party politics has to come into a case such as this. The fate of Chinook Zulu Delta 576 is a tragedy for many people. The finding is certainly not, as has been suggested, a manifest injustice. The time has come for this to be recognised. I believe that your Lordships' House should take note of the committee's report.
Lord Hardy of Wath
My Lords, I voted in favour of the referral of this matter to the Select Committee. I did so because, while I considered that the cause of the crash was the aeroplane being flown at far too low an altitude, there were so many suggestions, hypotheses and different arguments being advanced that I thought it would be appropriate for your Lordships to consider the matter and perhaps to conclude it satisfactorily.However, I now regret that I voted for the issue to be referred to the Select Committee. I regret it because while I pay tribute to the members of the Select Committee for their devotion to effort and for their immersion in detail, I still believe that the cause of the crash was low altitude and not any of the other suggestions that have proliferated. I received one suggestion the other day; that there may have been a margin of error of 150 feet in the assessment of height. Even if there had been, the aircraft would still have crashed. The lives would still have been lost. Bearing in mind the fundamental reality of the aircraft being flown too low, the reviewing officers, who are experienced and honourable men—and I have met them—were entirely justified in reaching their decision. One considers the weather. Bearing in mind the information about the weather and the risk of cloud that was given to the pilots before they embarked on their journey, they should have been aware of the conditions that they were likely to encounter en route. Clearly, the aircraft should not have been flown so low. My noble friend Lord Fitt reminded us of this in a previous exchange on the subject. He lives 11 or 12 miles from the Mull in the north of Ireland. He often looks out at the Mull and can see the weather changing dramatically within a 10-minute period. My noble friend agrees with the point that I have just made. The pilots will have served in conditions that would have led them to understand the nature of the terrain and of the kind of climatic changes that they could experience. Yet they still flew too low. None of the other possible arguments holds water. The fact is that that the aircraft was being flown too low and perhaps too fast. The skill of the pilots is not in doubt; their judgment is. Their skill was revealed by their last-minute attempts to escape from the land that they were rapidly approaching. They did not have the space to move out of danger. But that does not mean that the reviewing officers should have done anything other than their duty. Their duty directed them to make a decision that there was negligence. They have been criticised for being austere. Perhaps I should declare an interest. I am heavily involved in the Air Training Corps. We have sent quite a few young people from my squadron into training in the past two years. I do not know what they think of the squadron, but I know what I think and what their parents think—happily seeing their young people entering a fine career. They want the senior officers in the Air Force to set a priority. If it requires them to be austere, then so be it. We must bear in mind that people like the noble and gallant Lord, Lord Craig, like Sir William Wratten and the then Chief of the Air Staff, Sir Michael Gray, did most of their flying during the Cold War, when the Air Force had to involve itself in intensive and demanding training. They saw their friends die, and they do not wish to see people die unnecessarily. That is why, today, the Air Force spends enormous sums of money and devotes greater care to safety. It is not just a question of saving lives. The aircraft flown by Members of this House during the Second World War—the Spitfire, for example—cost about £13,000. Today's aircraft cost more than that figure in millions. Obviously, senior Air Force officers must try to ensure that the culture of safety is properly observed. That does not mean that we should start casting stones at the two pilots. It does not mean that we cannot share or sense some of the grief that their families, friends and colleagues will have felt; as will the families, friends and colleagues of the distinguished public servants who died as passengers in the crash. At the same time, it does not mean that we should seek to disagree with the responsible decision of Air Chief Marshal Sir William Wratten and Air Chief Marshal Sir John Day that there was negligence. That verdict was justified, and so was the Government's decision clearly to endorse it.
My Lords, the findings of the Select Committee, of which I was a member, have been fully set out by our chairman, the noble and learned Lord, Lord Jauncey. I thank him for the way in which he led the Select Committee in what was not an easy task. I also add my thanks to our colleague, the noble Lord, Lord Tombs. He brought his considerable technical expertise to bear on the problem and made it much easier for those of us who are not of a technical turn of mind to understand what had happened.I rather wish that the last words from the Select Committee had been those of the noble Lord, Lord Brennan, who summed up the critical issues. There is not a great deal more to say. However, I say to the noble and gallant Lord, Lord Guthrie, that there was no question of party politics entering the considerations of the Select Committee. I am sure that that view will be shared by my colleagues from the Select Committee, whether party members or non-party members. The Select Committee kept strictly to the remit that it was given by this House; namely, to examine the justification for the findings. I say to the noble Lord, Lord Mackie of Benshie, that we did not set out to find an alternative cause of the accident. I do not think that that is possible. The committee's findings were unanimous. Perhaps I may take up the point raised by the noble Lord, Lord Brennan, about the quality of the inquiry and the process. I do so not because it was our remit to comment on that, but because it goes to the root of why—or, at least, it is one of the reasons—the Select Committee was able to state unanimously that in its view the finding was not justified. I draw your Lordships' attention to a few examples. A paragraph on page 9 of the board of inquiry's report states that the board had:
The report states that the Chinook had experienced a number of unforeseen malfunctions. I shall not take up your Lordships' time by citing them all, but it is relevant to consider the evidence of Squadron Leader Morgan, who gave evidence to the board of inquiry. The witness statements are not contained within the published evidence but are in the public domain because they were put to witnesses at our inquiry. He was asked by the board what unforeseen malfunctions have occurred on the Chinook HC2 since its introduction to service. He answered:"reviewed the technical malfunctions and air incidents which had occurred with the Chinook HC2 in RAF service and considered whether they could have played a part in the accident".
He was asked whether the malfunctions were covered by drills in the Chinook flight reference cards. He replied that, no, the Chinook HC2 FRCs,"The unforeseen malfunctions on the Chinook HC2 of a flight-critical nature have mainly been associated with the engine control system, FADEC. They have resulted in undemanded engine shutdown, engine run-up, spurious engine failure captions and misleading and confusing cockpit indications".
The third and final question put to Squadron Leader Morgan was: were there any areas where the Chinook HC2 FRCs valid on 2nd June 1994 were confusing? He said that a number of emergency drills, in particular electrical and hydraulic, were poorly laid out and required the crew to be familiar with the drill to avoid confusion. He said that the shortfall in the Chinook HC2 FRC was discussed with crews during their conversion courses. I do not put forward those considerations as a reason for the accident. However, it is reasonable to ask, as did the Select Committee, whether further inquiries were made on those issues. It appears that they were not. Further questioning of the squadron leader confirmed that the board of inquiry held not only formal interviews, of which the evidence that I have cited formed part, but informal interviews. Witnesses have said that the boards in effect decide what line they want to follow before they take the formal evidence, and then take only the formal evidence that suits them. I would cite all of the evidence, but it is too late at night to do so, so suffice it to say that it is to be found under question 540 on page 6, relating to Squadron Leader Morgan's evidence. We also heard evidence from witness A, who would have been available, had the board of inquiry chosen to call him. He gave evidence to the fatal accident inquiry. Talking about the problems of the Chinook, he said:"were based primarily on the Chinook D model which is not fitted with FADEC…Drills relating to FADEC … were based on the best information available on how the system would respond during certain malfunctions".
Again, that is surely something that, had the witness been called and the question asked, would have prompted further inquiries. The Select Committee has implicitly been criticised for its conclusions about the weather. How much trouble did the board of inquiry go to find out about that critical matter? Mr Holbrook, who had a brief interview in the first place, gave evidence to Strathclyde Police that there were trawlers, or a trawler, with a St Andrew's cross on the superstructure. When we asked whether anybody had tried to find the fishermen around at the time who could have given evidence about the weather, we were told that inquiries were made by the RUC in Northern Ireland. It seems somewhat unlikely, given that the Scottish saltire was being flown, that that was the most appropriate place in which to make those inquiries. The noble Lord, Lord Brennan, referred to the role of the Air Accident Investigation Branch. Its findings have been put forward in support of the air marshals' findings, as were the Boeing simulations. However, it is important that we note the evidence of Mr Smart at question 149 in the published evidence. I quote part of what he said:"They occupied our minds to a great degree, crew room talk was of little else at the time. The crews felt extremely uneasy about the way the aircraft had been introduced into service. This perception was reinforced by a lack of information contained in the aircrew manual, the poor state of repair of the flight reference cards and such like as well".
He went on to say:"The role of the AAIB Inspector in the Board of Inquiry is to advise the President and members of the Board with those aspects that the members of the Board of Inquiry determine are areas they wish the Inspectors to consider. The Board of Inquiry consider the scope and direction of the investigation".
Later, he said:"We are not the investigating authority in a military accident investigation. We are purely there to support the Board of Inquiry".
In a case of this kind, when the Select Committee finds that such evidence is available and that no further questions have been asked about the issues, it is not unreasonable to suggest that, perhaps, we were not so unjustified in finding that the air marshals were not justified in their findings. I am not saying that any of the matters to which I referred were necessarily the cause of the accident, but, indeed, it is a possibility. Like other noble Lords, I have considerable sympathy with the reviewing officers in the task that they faced. We should not lightly disregard their findings, but they reviewed only the evidence that the board of inquiry actually had. I have no doubt that they made up their minds honestly believing their findings to be correct. Nevertheless, it must be recognised that several bodies, including the fatal accidents inquiries, have come to an opinion—maybe it is just an opinion—different from that of the air marshals. I would have hoped that the Government and the Ministry of Defence would have been able, in the circumstances of the Select Committee report and in the light of the points highlighted at paragraph 176 of the report, to accept that there was, in retrospect, a sufficient element of doubt to call into question the correctness of the findings. That would have been recognised as a sign not of weakness but of strength."The scope and direction of the inquiry are determined by the Board of Inquiry. We would only consider those areas they felt we should consider".
Baroness Michie of Gallanach
My Lords, as the former Member of Parliament for Argyll and Bute, I am grateful for the opportunity to take part in the debate considering the report of the Select Committee on the Chinook helicopter crash. The crash occurred on the Mull of Kintyre in my constituency on that fateful day, 2nd June 1994. Although none of those who died was my constituent, I was involved at the very beginning with the local authority and the emergency services. Once again I take the opportunity to pay tribute to them both for their swift and professional response to the catastrophe.I pursued the matter in another place and took it up personally with the Prime Minister. I did so on behalf of my constituents, who were—still are—deeply concerned, as I am, that a verdict of gross negligence should be passed on the two pilots against a required standard of proof of "absolutely no doubt whatsoever". I am no legal or technical expert and do not intend to rehearse all the arguments surrounding the disaster. That has already been done by many of your Lordships today. In fact, everybody who has already spoken seems to be an expert. However, it seems to me, as a mere lay person, that this is now a question of facing up to the truth. The truth is that we do not know and we shall never know the precise cause, or causes, of the crash. That is surely the only honest answer. It remains a matter of grave concern to me that the Ministry of Defence continues to reject, in particular, the conclusions of the fatal accident inquiry conducted in meticulous fashion by the Sheriff, Sir Stephen Young, in Scotland, and, indeed, the conclusions of your Lordships' Select Committee that:
Something you often hear said is that it does not matter what you believe as long as you are sincere. Sincerity is, of course, vitally important, but history is littered with examples of sincerely held beliefs which have subsequently proved to be wrong. I have no doubt that the reviewing officers who carried out their painstaking task sincerely believe that their verdict of gross negligence was right. But they could be wrong. Surely it is impossible to reach such a conclusion which demands a high standard of proof. I respect the expertise of the senior reviewing officers and I understand their need to come up with an explanation, but even they do not know with absolute certainty what happened. To see if I could draw any parallels or find similarities, I recently reread the reports of another quite appalling tragedy which happened on the west coast of Scotland to compare the conclusions and judgements of the subsequent inquiries. It occurred early on Wednesday, 1st January 1919. The "HMS Iolaire"—pronounced lolaire in Gaelic, meaning "Eagle"—sank at the mouth of Stornoway harbour on the Island of Lewis. There were 284 on board. The ship had a crew of 24 and was carrying 260 naval ratings returning home from the Great War. On that dark night, with squally showers and heavy seas running, the "Iolaire" struck the rocks known as the Beasts of Holm at the entrance to Stornoway harbour. In total, 205 perished, including all the officers and most of the crew. Only 79 people survived. A public inquiry was convened in Stornoway presided over by Sheriff Principal Macintosh, with a jury of seven. Questions were raised about the failure to alter course and reduce speed at the appropriate time. While there were many criticisms and recommendations and, indeed, a call made by lawyers representing the bereaved relatives for a verdict of gross negligence, because the jury could not know the absolute truth about what had happened, no blame was attached to the officers and crew. I appreciate that the practices in the three different services may not be the same, but a naval inquiry ruled that there was no evidence properly to explain the reasons for the accident as the ship's log was lost and none of the officers had survived. Consequently, the Admiralty concluded that,"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
Only the "Titanic" exceeds as Britain's worst disaster at sea during the last century, yet beyond the Minch few have every heard of the "Iolaire". Earlier this year I visited again the site of the Chinook crash where stands the simple monument; a cairn constructed with stones from around the area. The purple heather has grown again hiding most of the scars on the hillside. But it will not hide the scars of the bereaved families. It was a beautiful spring afternoon and the sun glinted on the simple plaque depicting the names of all those who lost their lives on that tragic day. The view across to Rathlin Island was stunning, but within minutes the sun had gone and we were enveloped in mist as a squally shower swiftly came and went. I promised my former constituents who were there with me that day that I would try again to persuade the Ministry of Defence that in the interests of natural justice the verdict of gross negligence should be set aside and the matter finally laid to rest. I believe that that verdict will eventually be set aside—perhaps not by this Government, which is sad. I believe that it will be set aside and I therefore support the amendment in the name of the noble Lord, Lord Chalfont."No opinion can be given as to whether blame is attributable to anyone in the matter".
Lord Cooke of Islandreagh
My Lords, I intend to speak from a different angle about this tragic accident: from my own knowledge, such as it is. I know the Mull of Kintyre well. I have sailed up and down it many times in different weather conditions. Sometimes it is clear and sometimes there are days similar to the one in question, with cloud formed over the Mull and a considerable amount of wind. I noticed that the wind was turbulent; that the clouds were constantly varying. At one moment one could see; the next moment one could not. The thickness of the clouds also varied. It was very changeable.When I later saw the position of waypoint A, I was astonished that that was where they intended to fly on a day on which they had been given such a weather forecast. Waypoint A was almost, if not completely, in cloud. There was no business to be there at all. Who, I wondered, set that waypoint. I presume that the pilots set it beforehand. They should, in my view, have set the waypoint a mile or two miles short so that they had time to see conditions on the Mull and to take action to move safely away. As it was, no matter how they performed when they reached waypoint A, they could have had very few seconds before hitting the rock, as they did. It happens also that I have spent many hours flying as a passenger in helicopters around the coasts of Ireland—north, south, east and west—in order to inspect lighthouses as that was the job of the Commissioners of Irish Lights of which at that time I was chairman. We flew in different conditions—we had to—and it was not uncommon for headlands ahead to be covered in cloud. This happened several times, but each time the pilot made his change of course several miles before getting to the cloud in order to be either above it or below it. When he went below it, I noticed that he was able to follow the line of surf, which could be seen because it was startlingly bright, round the edge of the headland. I am glad to say that we never had any problems. The pilots told me that they regarded being in such fog as a disaster because of being unable to judge how thick it was. That reinforces my view that waypoint A should have been fetched up perhaps two or three miles short so that the pilots had plenty of time to make up their minds whether to fly round the Mull to the north or over the top. In fact, it would have been quite easy to turn to the left and fly round the Mull up the Sound of Jura. I am astonished that they did not do so. In my view, the pilots took an extraordinary risk in flying as close to the Mull as they did. I draw the conclusion that they must have displayed an extraordinary amount of carelessness or thoughtlessness to have gone as close as they did and to be in a danger that they should never have been in.
Baroness Ramsay of Cartvale
My Lords, I should like to say right away that I have the deepest respect for the noble Lords who were the members of the Select Committee under the chairmanship of the noble and learned Lord, Lord Jauncey. But I have also to say that I do not believe that there should have been a Select Committee of your Lordships' House on this issue, and I viewed the decision of the House in April 2001 with deep unease for all the reasons that were well rehearsed then and some of which my noble friend Lord Brennan referred to today. I shall not repeat them here now. I think that a highly undesirable precedent has been set which I sincerely hope will not be one which is followed again. However, the House decided on the Select Committee and we are now taking note of its report.I have to say to the noble Lord, Lord Chalfont, with great respect, that I find his tabled amendment a highly unusual device to say the least in a debate to take note of a Select Committee report, and I agree with what the noble Lord, Lord Burnham, said about that. I believe that it would lead this House down a wholly inappropriate and wrong path, so I sincerely hope that the amendment of the noble Lord, Lord Chalfont, is rejected if it is not withdrawn. As I told the House in July of this year when we heard the Government's response to the Select Committee report, I speak as someone who had a personal interest in this tragic crash, and who has followed in some detail all that has transpired since June 1994. We owe it to the families of all those affected by this tragic accident to find out what caused this crash. I believe that the only realistic explanation is that found by the reviewing officers, which continues to withstand the most rigorous tests applied to it. The standard of proof is high, but the reviewing officers were convinced that they could be and had been satisfied that the criteria of "absolutely no doubt whatsoever" had been met. With the greatest respect to the Select Committee, I, unlike the noble Lords who were members of that committee, see no reason to, nor am I prepared to, second guess the two reviewing officers, the two air marshals, who, in addition to all the available expert information at their disposal, had their own considerable professional knowledge and experience of military flying. Evidence from the crash site, from the wreckage and from air traffic control, as well as eye witness testimony, all clearly indicate that this aircraft carried out a fast, low level transit and that the aircraft was under control up to and indeed at the time of the crash. Air accident investigations are difficult procedures, often having to put together an incomplete jigsaw based on those facts that can be established, and I have to add that it is wrong to suggest that one has to disprove positively any and all theories put forward even if there is no evidence to support these hypotheses. As I said in July, this is an issue of enormous pain for all the families of the victims of the crash. I want to make crystal clear that nothing I have ever said or ever shall say should imply other than that I have the deepest sympathy with the families of the two pilots, and complete understanding for all their actions. But I put it again to this House as I did in July that the time has come when a line should be drawn and the wounds of bereavement, which have been opened again and again since 1994, for all the families affected should be allowed to start to heal.
My Lords, before the noble Baroness sits down, I wonder whether she is seriously suggesting that because of the hurt brought to the families of those killed we should cease to look for the truth in the matter? Would she mind telling me how many of those families she has talked to and whether she has received any information from them as to the course they would like to take?
Baroness Ramsay of Cartvale
My Lords, I do not think that we should discuss how many families we know who have been involved and what they have said to us. The noble Lord, Lord Chalfont, may do so if he wishes, but I certainly do not wish to. I am satisfied that the truth has been found by the two reviewing officers, so I do not think there is a question of having to go on to find the truth.
My Lords, it is with a degree of reluctance that I take part in the debate. I have followed closely the history and substance of the various inquiries that have taken place to establish the cause of this tragic accident. Like other noble Lords, I feel desperately sorry for all those who, eight years on, are still affected by the uncertainty engendered by the continuing debate on what really happened and how any blame might be attributed.I refer not only to the families of the helicopter crew but also to the families of passengers in the aircraft and to all those who have had the unenviable task of pulling together in colossal detail the facts as they see them and reaching conclusions about why it occurred, which, as the noble and gallant Lord, Lord Guthrie of Craigiebank, said, their duty required of them. I have had considerable practical experience in the helicopter world. It might be helpful to your Lordships if I were to explain that. I have been a helicopter pilot since 1968. I have flown with the Army for five years and, latterly between 1976 and 1982, with what was then British Airways Helicopters. I have in excess of 4,000 hours' flying time mixed roughly half-and-half between light military helicopters and large commercial helicopters, and I have held an instrument rating. I also have a few hundred hours' fixed wing experience. My licences are not now current, but I have been for the past 10 years chairman of the British Helicopter Advisory Board, which is the trade association for all the commercial helicopter operators in the United Kingdom, and, through that, chairman for six years of the European Helicopter Association which is a grouping of associations throughout Europe similar to the British Helicopter Advisory Board. For several years I have also been chairman of the International Federation of Helicopter Associations, which deals with international regulatory issues and has observer status at the International Civil Aviation Organisation. I am also a fellow of the Royal Aeronautical Society, on the Council of the Air League, and a Liveryman of the Guild of Air Pilots and Air Navigators. So, in a sense, the practical operation of helicopters has formed a very large part of my working life. I appreciate that the responsibilities that I have described are primarily concerned with civilian helicopter operations, but there is one concept that goes above and beyond any differentiation between the two types of flying and is common to both. I refer to the concept of airmanship, to which I shall return later. Most experienced aviators agree that it is not one single factor which causes an accident, but a combination of factors. It would be possible to give examples, but, in the case of the Chinook accident, poor weather, low flying, a time factor, and, for whatever reason, a degree of uncertainty about precise position, were all factors conspiring against the crew; a combination of hazards from which perfectly clear rules were there to protect them. I have had considerable experience of flying in command of helicopters on the North Sea. I have not flown the Chinook, although it was introduced on to the North Sea in its civil version—the Boeing Vertol 234—during my time. I flew the Sikorsky S61 N, which is capable of carrying in excess of 20 passengers with a fairly sophisticated instrument fit. It was equipped with an automatic flight control system, but not with an automatic pilot. So it was broadly similar to the equipment in the Chinook accident in question. We used cloud-break procedures down to a very low level of about 200 feet in order to make an approach to oil platforms. Unlike military Chinooks, we were equipped with weather radar, which enabled us to have a clear picture of the platform that we were approaching. However, all of us became very used to appreciating the marked difference in forward visibility between, for example, a height of 300 feet, where visibility might be extremely limited, and perhaps 200 feet where there was substantial forward visibility—a set of circumstances not dissimilar to the experience of the yachtsman near the Mull of Kintyre at the time of the accident. The same was also true of approaches towards land in the event of bad weather where it was not possible to climb—for example, because of a freezing level near the surface in the winter—or for other weather reasons that required us to follow the coast back towards the airfield at low level. I have read the board of inquiry's report, the written evidence given to your Lordships' Select Committee, the Government's response to that report, and almost every other piece that has been written about the accident. I have also had conversations with many experts in the field. From all that has been said and written, it is perfectly clear that there is no evidence whatsoever of any technical failure that is likely to have caused, or contributed to, the accident. I am the first to appreciate that there have been a number of instances involving aspects of the Chinook Mk 2's introduction into service which at one point or another in the process of release to the service might have given rise to anxiety. But it is my clear opinion, as it is also of the air marshals, that none of them is strictly relevant to this accident. This is where I turn to the matter of airmanship, which was also referred to my the noble and gallant Lord, Lord Craig of Radley, and, in particular, its relevance to the rules that govern safe flight under visual meteorological conditions. Those rules were clearly set out on slides shown to the Select Committee by Air Chief Marshal Sir John Day, and are shown on page 115 of the Select Committee's examination of witnesses document. Such rules are clear and unequivocal. They are not guidance; they are not woolly advice that a military pilot might, or might not, choose to follow. They are an instruction, and they are there to prevent inadvertent collision between either the subject aircraft and another one, the surface, or anything in the aircraft's path by allowing opportunity for avoiding action. Those rules allow for the possibility that the pilot of an aircraft becomes unsure of his exact position—something which can happen to any pilot, irrespective of the quality or complexity of the navigation equipment that he has on board. They are the only guarantee by which a pilot flying under those conditions can be certain of avoiding imperilling himself and his aircraft. Those rules cater for different speeds. Strict adherence to them ensures that the pilot of an aircraft could take whatever action is necessary under any circumstances to avoid hitting either the surface or anything in his way. Any failure of equipment, change in handling characteristics or other untoward event would, if strict visual meteorological conditions had been maintained, allow the pilot either to climb at once to his minimum safe altitude, to turn away or, most likely, a combination of both, particularly if inadvertently he had entered cloud or breached the minima for visual flight close to a known obstacle. Like the noble Lord, Lord Gilbert, I have to say that it is wholly incredible to suppose that, just because the pilots were very experienced and considered highly efficient, they might not have breached those strict rules. I fear that most of us with considerable flying experience have probably stretched the limits of visual flight rules at limes and got away with it. I plead guilty to stupidity and to breaching these rules as a young Army pilot. Once, when rated of above-average ability, I allowed my judgment to slip, entered cloud deliberately and very nearly hit the ground, when undoubtedly I would have killed myself. I was the only person on board the aircraft at the time, but that momentary lack of judgment and over-confidence was a terrifying lesson on why such stringent rules exist. When we talk about military aircraft, it is important always to remember that we are concerned with disciplined services, where rules are absolute and to be obeyed unless there is a very good operational reason for doing otherwise. By no stretch of the imagination can I, or very many others to whom I have spoken, conceive of any reason for flying a large helicopter, with or without passengers, at speed and at low level into doubtful visual meteorological conditions, probably breaching them, and entering cloud while approaching land from the sea, below the minimum safe altitude. It is, frankly, incredible; it exhibits a lack of attention to the concept of airmanship which is, or should be, dinned into the minds of all military and civil pilots throughout their flying careers, and which may be difficult for people not so familiar with flying to comprehend fully. More than that, within a disciplined military ethos, those who determine causes of, and review, accidents are charged with a very real responsibility. As we heard, a board of inquiry is not a court of law. Its review by senior officers is a crucial element in the process and cannot be tackled with undue sensitivity. I cannot believe that it was with anything other than enormous regret that Air Marshals Wratten and Day reached their conclusions. There was no credible alternative. They had a duty to report as they saw fit, within the existing range of options open to them, using their very best experience and that of those around them. To my mind, it is not only perfectly justifiable, but it is only proper, that such a serious breach of the rules for visual flight should be regarded as negligent, and, under the terms of such a report being produced at that time, considered grossly negligent. If those rules had not been breached, there is no doubt that the accident would not have happened. It gives me no pleasure whatever to disagree so strongly with the noble Lord, Lord Chalfont, for whom I have had enormous admiration over the years, and in part to cause further distress to the families of everyone concerned. But I have been closely involved with flying helicopters almost continuously for 34 years and I support 100 per cent the conclusions that the Government, through the Ministry of Defence, have reached in response to the Select Committee report. I very much hope that the noble Lord, Lord Chalfont, will not divide the House on his amendment. I cannot see that, even if the House votes for the amendment, it is likely to change the way things are. It is likely to cause further prolonged grief, uncertainty and anguish for all concerned, and that would be a step that I, for one, would most heartily regret. Vast amounts of time have been spent examining this accident, not least by the Select Committee of your Lordships' House. Its report was very thorough, but, with the greatest respect to the noble and learned Lord, Lord Jauncey of Tullichettle, it concentrated on a series of supplementary issues that were incidental to the fundamental breach of airmanship and the strict rules governing visual flight at low level, which, I am afraid, was the ultimate cause of the accident and, thereby, the inevitable and proper verdict of the air marshals. When I was commanding a squadron of Army helicopters, I had framed on the wall opposite my desk the saying:
I am sad to say that this tragic accident falls clearly within the ambit of those words."Aviation is not, of itself, inherently dangerous but to an even greater degree than the sea is very unforgiving of any incapacity, carelessness or neglect".
My Lords, I feel ashamed of having added my name to the long list of speakers tonight and of following the noble Lord, Lord Glenarthur, whose expertise would put anybody to shame. However, I should like to make two points. First, I totally agree with the noble Lord, Lord Brennan, that this was probably a bad occasion on which to set up a Select Committee of your Lordships' House. I yield to no one in my admiration for Select Committees. They work hard and dispassionately, they take evidence and, in my experience, they never go beyond what the evidence allows in drawing their conclusions. However, this was a difficult case because, as the noble Lord, Lord Brennan, has already said, the committee amounted to a court of law, finding people guilty or deciding that there was not sufficient evidence to deem them guilty.Nevertheless, the Select Committee obviously worked hard. Like others who have spoken this evening, I read the report with enormous attention and interest. It is extraordinary and regrettable that your Lordships' House should find it necessary to refuse to accept the conclusions of the Select Committee, ill-advised though it may have been to set it up in the first place. My second point goes back to the standard of proof required before the finding of negligence could be established. That is starting point of the amendment tabled by the noble Lord, Lord Chalfont. Those noble Lords who wish to assert the propriety of the finding of negligence have not explained how that extremely strict standard of proof can be set aside. As we have heard many times, the standard is that there should be absolutely no doubt whatsoever about the verdict. There is no doubt in my mind that some of your Lordships who are confident of the propriety of the verdict of gross negligence have recounted the story of what happened as a narrative, telling us what the pilots did and where they went wrong and asserting that they were rash, that they did not take the weather into account and that they were flying too fast and too low. Like many narratives, it is delivered with great conviction. The people who have told it have frequently said that it is the only realistic or credible explanation. That is the power of the good story teller, who proceeds on the assumption that they know how it must have been and then we all believe it. As regards the standard of proof and there being no doubt whatsoever of the propriety of the verdict, one must begin to doubt—as, indeed, people, including the unanimous body of the Select Committee, did doubt—that that standard had been reached. One may argue that it is an impossibly high standard and that there can be no past events for which it is proper to say that there can be no doubt whatsoever as regards what happened. Nevertheless, those are the relevant words. I refer to the doubts, which I certainly do experience, for example, as regards the aircraft remaining under control right up until the end, as has been assumed in the stories that we have been told; that is, that the pilots did something wrong. But what if there had been a fault? It has to be remembered that the helicopter was virtually destroyed by fire. If there had been a computer fault, for example, there could have been no evidence left to find. Everyone agrees that the evidence was extremely thin. That fact alone seems to me to justify experiencing doubt. If doubt is experienced, according to the standard set there should have been no assignment of blame and no establishment of gross negligence on the part of the pilots. The evidence gained from simulation is not real evidence. The evidence left on the ground was negligible. I cannot see how doubt can possibly be precluded. Therefore, I am glad that the noble Lord, Lord Chalfont, brought his amendment forward.
Lord Bruce of Donington
My Lords, I must confess to being a little dismayed by the observations that fell from the lips of the noble Lord, Lord Glenarthur. There was an air of complete certainty about them. To my mind he seemed to be in no doubt as to exactly what occurred and of the consequences.I must say that I remain still very uneasy. I have no experience in aircraft other than as an occasional passenger during the war courtesy of the then Royal Artillery. But I still remain uneasy and I am still trying to find out why. There is no doubt in my mind that those of your Lordships who have taken the trouble to be here and to speak on this subject are deeply sincere in their own beliefs. I am quite willing to concede that their sincerity matches mine. It is just after all these inquiries that the matter is now shelved. I therefore have to give the House notice—not that it will shudder at it in any way—that I intend to pursue the matter further until I am satisfied, because at the moment I am profoundly uneasy. My feelings are set out roughly in the report produced by the committee. I draw your Lordships' attention to paragraph 174 in which the committee sets out its final views on the subject. I do not know whether there were any skilful pilots on the Select Committee or how many expert pilots there are in the Ministry of Defence. It appears that paragraph 174 requires an answer. I have listened this afternoon to some very erudite observations but I remain unsatisfied. Without in any way being portentous, I seek to attribute enormous and solemn dignity to the report's paragraphs. Paragraph 174 states:
The Select Committee continues in paragraph 175:"In carrying out our terms of reference, we have considered the justification for the Air Marshals' finding of negligence against the pilots of ZD 576 against the applicable standard of proof, which required 'absolutely no doubt whatsoever'. In the light of all the evidence before us, and having regard to that standard, we unanimously conclude that the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
"We consider it appropriate to identify those matters to which we have had regard which were not before the Air Marshals when they considered the investigating board's report:
It also states that the committee had regard for,"it used the postulated speed and ROC which have been shown to be incompatible".
Those points are fairly concisely put, considering that they emanate from a committee. In my view, they are unequivocal. The report of the committee concludes:"the possible effect of contamination in the hydraulic fluid in the integrated lower control actuators, as referred to in the US Army report of June 1997".
It has to be remembered that there is one overshadowing factor throughout the entire episode: there had to be no doubt as to the cause of the accident itself. The noble Lord referred to the RAF Manual of Flight Safety AP 3207, published by the Inspectorate of Flight Safety and in force at the time of the accident. Paragraph 9 of Annex G to Chapter 8 of the manual provided that only in cases where there is absolutely no doubt whatever should deceased crew be found negligent. Within the welter of evidence and speculation that has attended this dire episode in both Houses, I ask myself: how can there be anything that removes a doubt in this 'matter? I do not know and have not made inquiries as to what hinges on the personal negligence finding against the pilots or the pilots' families. In the event of them being found "guilty", do their families suffer any financial penalty as a result, or does the finding that there is no doubt whatever mean that some financial burden is borne by someone? Is it, for example, a fact—I do not know and make no imputation whatever that—if they are found to be negligent, that will have some influence on the pensions that their families may receive'? I have not been told and do not know. Perhaps we can he told. In all, reading through all the correspondence as an outsider, I still have a nagging doubt as to the correctness of the line that has been taken by the ministry. If widespread, that doubt is fatal to any indictment or blame attached to the pilots precisely, unfortunately, because they are dead. In those circumstances, in the absence of any doubt whatever, this whole business would never have begun. For my part, until I have no more doubts about the matter, the battle will continue."How could it be that a very experienced crew, having planned to fly VFR, having taken when probably visual with the Mull the appropriate steps to alter course, when there was nothing to prevent them flying northwards within sight of the coast, flew into the Mull? It is as Sir John and Sir William speculatively described 'incomprehensible'…and 'astonishing'…We shall never know".
Lord Woolmer of Leeds
My Lords, the noble Lord, Lord Brennan, a member of the Select Committee, spoke wisely when he said at question 420 on page 146 of the oral evidence that intelligent people can look at the same set of circumstances and genuinely reach totally different conclusions.In this tragic case such differences in conclusions have been reached, possibly because people have not looked at precisely the same set of circumstances in the same way. That was pointed out in powerful speeches by the noble and gallant Lords, Lord Craig of Radley and Lord Guthrie of Craigiebank. The noble Lord, Lord Glenarthur, also made an extremely powerful speech. I am not persuaded by the conclusions reached by the Select Committee. This was a routine, civil flight, with no pressures on the crew to fly with anything other than the maximum degree of care and caution. The pilots had received meteorological information warning them of poor weather conditions in the vicinity of the mull. As they approached the land, the pilots must have been aware that their visibility could be reduced significantly, as indeed it was. Had they been flying within the minimum visibility allowed for visual flight, they would have recognised the seriousness of their situation and they should have taken appropriate and prompt action to turn away or to fly higher. I found the oral evidence of Air Chief Marshal Sir William Wratten convincing on those points and on the conclusions that he drew from them. Even if, in the event, a tragic accident and deaths had not occurred, that would not have taken away the fact that the pilots behaved negligently. In paragraph 147, the Select Committee posed the following criteria, which I found extraordinary:
I found that an extraordinary proposition. If I were in a civil airliner approaching a runway in varying fog with no radar and poor visibility and I expected the pilot to land if he was less than absolutely convinced he would not crash, I would regard those as extremely poor criteria. I would expect the pilot not to attempt to land unless there was absolutely no chance of crashing quite the opposite to that posed by the noble Lords on the Select Committee. Nothing in the committee report convinces me that the original conclusions of the two air marshals, following the due inquiry process, were invalid or incorrect. Bearing in mind the wise words of the noble Lord, Lord Brennan, I discussed the matter with the noble Lord, Lord Robertson of Port Ellen. As the incoming Secretary of State for Defence in 1997, he and his three ministerial colleagues—the noble Lord, Lord Gilbert, referred to this point—reviewed the incident with an open mind. To my good friend Lord Brennan I say that if he believes that George Robertson, John Gilbert, John Spellar and John Reid were all incoming Ministers who were soft touches for the military, he does not know them as well as I do. Ten Ministers from different political parties all had the opportunity to review the evidence and all reached the same conclusion. In my conversation with him the noble Lord, Lord Robertson, went on to add—he agreed to me communicating this to the House in his absence—that he had read and considered the present report of the Select Committee and all the documentation and that he sees no reason to change his conclusion. I believe that the decision of the two air marshals all those years ago remains justified and correct and is not diminished simply by the passage of time. I regret that I am unable to support the amendment of the noble Lord, Lord Chalfont."In the context of the Air Marshal's conclusions that the pilots were grossly negligent in placing the aircraft in the position in which it was…the question to be answered is whether there is absolutely no doubt whatsoever that they ought to have foreseen that their action would in all probability occasion the final event".
My Lords, first I—and I think the whole of your Lordships' House—thank and congratulate the noble and learned Lord, Lord Jauncey, and his Select Committee for the work that they have done. I have read the report and I am very interested in it.First, I declare a mild interest. Among the passengers lost, one was my private secretary from my first job in Northern Ireland. The second was an extremely kind official in the Northern Ireland Office, who was more than kind to me on several evenings. That sense of loss, as well as that of the crew, will be felt by my noble and learned friend Lord Mayhew. I am sure he will have known many more who were lost. The passengers would have known me and many of your Lordships from our duties here and elsewhere. The horror of the event in 1994 is still with me. It is revisited every time we have debates or discussions on this matter. The noble Lord, Lord Chalfont, will remember that I set up a meeting across the road in Abbey Gardens when I heard a full rundown on the FADEC, the Wilmington affair and all the aspects of mechanical and other possibilities—plausible possibilities—regarding the Chinook. Also, I had the luck to attend a briefing by the two air marshals. So I hope that I have had a fairly balanced briefing on all these matters. If there is a tinge of sadness in my remarks in what has been a fascinating debate, it is that I am slightly sad that the law and legal definitions have muddied a very difficult case. Once again I was fascinated to hear the noble Lord, Lord Bruce. He shares with me the profession of accountant. It is a trait of the accountancy profession that we do not dabble in the law or in definitions. I felt that the noble Lord, Lord Bruce, was attempting to put his little toe into legal definitions. Certainly, we shall hear more about the matter from him. It was set out in all the reports, as well as in the fatal accident inquiry, which has been mentioned, certainly by the noble Baroness, Lady Michie, that the entire four-man crew were the creme de la creme. It is in the report and witness A stated that they served with special forces. So they were probably one of the best crews in helicopter flying and in the Royal Air Force. It is amazing to me that they were active in and around Northern Ireland during their duties with this aircraft. I find it hard to believe that the Royal Air Force would permit, or indeed tolerate, this distinguished creme de la creme crew to fly an aircraft, the Chinook Mk 2, that was in any way unsafe or unfit for duty, especially on special forces duty. Curious evidence appears in the fatal accident inquiry and it has also been mentioned in other evidence that I have seen. On the day when the crew planned with great care this mission from Aldergrove to Fort George and back, they spent—it has been admitted—from 9.45 until 15.25 carrying out other duties in Northern Ireland. That seems to me to raise a question. I agree that the lawyers, every fatal accident inquiry and all the discussions that have taken place in your Lordships' House and elsewhere have concentrated on what is in absolutely no doubt. But the motto of my institute of chartered accountants is "Seek the truth". I ask this question and I am sure that the Minister will not be able to answer, but some explanation will come out. Probably—it is perhaps not my business—it is operational requirements. But I find it curious that it has been admitted that the crew spent six hours of their permitted hours, when they were supposed to be flying to Fort George and back, in Northern Ireland. I congratulate my noble friend Lord Glenarthur, and I admire the comments made by the noble and gallant Lords, Lord Craig and Lord Guthrie. The noble Lord, Lord Gilbert—who, alas, is not in his place—put the case beautifully. He indicated that "gross negligence" was possibly something of an overreaction, but that there had to be some description of pilot error. So far as concerns airmanship, my noble friend Lord Glenarthur has described it beautifully. I have personal experience of my noble friend flying with an instructor in a fixed-wing aircraft, in particularly difficult conditions, over my home. I was impressed then, and I have been impressed by his remarks in this debate. I have seen those qualities. I know him to be a practical man, and we have heard the points that he has made. I have listened to everything that has been said on this matter over the years. I am afraid that I cannot support the noble Lord, Lord Chalfont, if he presses his amendment to a Division. I shall support the Minister because I strongly agree with the Government's conclusions.
Lord Vincent of Coleshill
My Lords, I find this the least welcome debate in which I have participated in my six years in this House. As a former Chief of the Defence Staff, I am keenly aware of the scale and nature of this tragedy and of the strong feelings and concerns that it has aroused. Not least, I realise the lasting effect that it will have on the relatives and friends of those who died. In the case of the two pilots who were killed, I understand the added horror and grief that must have resulted from a posthumous finding that they were "grossly negligent".For the record, I should add that by the time of this accident I had relinquished my appointment as Chief of the Defence Staff and had been serving in NATO for well over a year. I therefore had no formal involvement with t his matter at all. But my earlier service experience has given me a clear understanding of the statutory duty and the heavy weight of responsibility that falls on those who have to review formally the findings of such boards of inquiry. Of course, their primary and overriding duty is to ensure that their judgments rest on convincing evidence which must satisfy fully the burden of proof required, as defined in this case in Air Publication 3207. But after meeting that requirement as an essential pre-requisite to their findings, they must also take account of the relevant lessons learnt from such inquiries, so that the risk of such accidents, whatever their causes, is minimised in future. Indeed, to fail to do that honestly and objectively could send a highly irresponsible and potentially dangerous message about acceptable flying standards to current and future generations of service aircrew. Against that background, I have read very carefully the Select Committee's report and the Government's response to it. In this regard, I have to note that none of the current Ministers serving in defence appointments today, including the Secretary of State himself, had any formal involvement with this board of inquiry and its immediate aftermath. They have, therefore, had an unfettered opportunity to form their own judgment on it before formulating their response. For me, one key issue emerges regarding the finding of "gross negligence", and this stems from a series of facts arising from both the report of the Select Committee and the Government's response to it. The first is that the Chinook's SuperTANS navigation system, which was subsequently found to be performing normally at power-down (impact), showed the aircraft to be less than one nautical mile (0.81) from the Mull lighthouse and only some 600 metres from the cliffs ahead when the second waypoint was selected. That conscious change of waypoint also shows that the pilots were clearly in control of the aircraft at that time. Secondly, by the time at which that new waypoint was selected, the pilots should have been aware of their position relative to the high ground ahead, given that flying under visual flight rules demands at least 1,000 metres visibility. By that time, they were so in breach of visual flight rules that not only were they too late to conduct a cruise climb to the safety altitude of 2,400 feet that applied in this case, they were also too late to make an emergency climb to that altitude. So my firm personal conclusion is that negligence had occurred because the aircraft was being flown in clear breach of visual flight rules by the time that the waypoint change took place, and that that was placing in increasing hazard the safety of the aircraft and those in it. It follows that the various hypotheses about subsequent possible systems malfunctions are irrelevant to that basic finding. For those reasons, I cannot support the amendment moved by the noble Lord, Lord Chalfont. With great respect, I hope that he will now consider withdrawing it.
My Lords, the noble Baroness, Lady Michie, described where the crash took place. I have a little cottage there from which I can see the site; I have visited it on many occasions. I have previously explained in your Lordships' House how cloud variations there could quite possibly lead to an accident.This evening, my noble friend Lord Brennan made the most persuasive speech on any subject that I have ever heard in your Lordships' House. Anyone who reads that speech will be in no doubt as to what actually happened and what brought about the Select Committee's conclusion. I felt like interjecting earlier when the noble Lord, Lord Glenarthur, asked a question, because the more that I listened to the various accounts of what happened, the more I wondered about this question. Are the two pilots in charge of the helicopter at any given time, or is one pilot steering the helicopter, while the other sits beside him, willing to take over if he gives up? If one pilot is guilty of driving the aircraft into the mountain and the pilot beside him is not, why blame the two pilots? It is quite possible that one of them had no part to play in the crash. The noble Baroness, Lady Michie, said, and I repeat—I have used these words in previous debates—that this subject will not go away. At some time in future, whatever government is then in power will reverse the decision. Only last week, we all watched the Channel 4 television programme that set out to discredit and make fools of your Lordships. I admit that I was very annoyed about it. Your Lordships decided to set up a committee to inquire into all the circumstances of the Chinook crash. It has issued a report, and we are now asked to say, "We set up the committee; it held an inquiry; it arrived at a different conclusion; but let us just forget about it". That would be a derogation of the responsibility of your Lordships' House. If the House sets up a committee to inquire into something, we should be prepared to carry it to its ultimate conclusion. I appeal to the noble Lord, Lord Chalfont, not to be beaten off track by people saying, "There are regulations; this has never been done before and we should not break with tradition". The five Members of your Lordships' House went into every aspect of the Chinook crash in great detail. The House should be asked tonight to give an opinion, to see how that opinion is received in the country. I have no doubt that the overwhelming majority of the people to whom I have spoken would fully support the exoneration of the two young pilots.
My Lords, I apologise for getting up to speak in the gap. I had withdrawn my name from the list for personal reasons that are known to the powers that he. However, on returning via the House of Lords, I discovered that your Lordships were still discussing the matter. As the fifth member of the Committee, I should say how much I appreciated my four colleagues and the thought and the care that they gave to hearing the evidence that came before us.When we started off, we all had different views. I do not share a room with my noble friend Lord Mackie of Benshie for nothing. Properly, I had it drilled into me that I should always remember the test of good airmanship. I did, and so did the other members of the Committee. However, having heard all the evidence—much of which was extremely impressive—on both sides of the argument, including that of the air marshals, we were unanimously of the opinion that no court in the country could say that it was negligence, established to the standard required for the case by the directive from the Ministry of Defence itself. I remind your Lordships of one thing—in fact, it is more than one thing. Air Chief Marshal Sir John Day told the Committee that it was,
I can readily understand why he said that. However, one reason for the accident could have been that there were two fallible pilots and both happened, extraordinarily, to be of the same mind at the same time. In fact, I suggested in questioning that, given their knowledge and background, the pilots must have been on a suicidal mission to do what they did. The air marshal—whichever one it was I put that to—objected to the suggestion. The other possibility is that there was a fallible machine. In the end, do we say that the two pilots who were killed cannot speak for themselves? There are no records of what they were doing at that time, and there are two different views from other air officers with, I respectfully suggest, knowledge equal to that of the air marshals. However, another possibility is that, at some stage, there was a problem with the machine that caused the crash. Afterwards, as we know, the evidence from which conclusions could be drawn was, as the chief investigator pointed out, very thin, due to the damage to the aircraft. Air Commodore Crawford—now retired—rejected the investigating board's conclusion that the most probable cause of the accident was selection of an inappropriate rate of climb. He gave his reasons, which I do not intend to go into. None the less, he pointed out that the change of WP to go for Corran, which was selected late on, was explicable only if they were going to go along the coast. I need not go into detail, but I will say that we had a string of impressive witnesses, of whom the most impressive, to my mind, was the witness called A. He was a highly decorated and experienced pilot, who came back from Afghanistan to give evidence. He said exactly the same—at least, he held the same view—as Air Commodore Crawford. He had been working with both those pilots. He knew the area backwards and he described what he thought that the two pilots were doing at the time. It was not in accord with the thoughts of the air marshals, but this was an officer who had worked on special duties in Northern Ireland and knew the ground backwards and he had as much intimate knowledge as any of the air marshals. He was a very impressive witness. In conclusion, I do not believe that any court in the country who had heard the evidence that we heard could possibly have concluded that it was proven beyond absolutely no doubt that those two pilots were guilty of negligence."incomprehensible why two trusted, experienced and skilled pilots should…have flown a serviceable aircraft into cloud covered high ground".
My Lords, we have had a debate today which has exhibited rare passion in this House. That is probably because it is such a tragedy that 29 people lost their lives. My noble friend Lady Michie gave a moving account of the crash site today. That was the first time I heard that Members of this House—the noble Baroness, Lady Park, and the noble Lord, Lord Lyell—lost friends in the accident.There has been much speculation in the press and on the Internet that the crash and the resultant cover-up is part of a conspiracy. I do not believe that for one second. The crash was either mechanical error or pilot error. One of the problems that I believe goes to the crux of why we are debating the issue today is that if it was pilot error, the phrase "gross negligence" is associated with that. I should like to echo my distaste for that phrase, as expressed by the noble Lord, Lord Gilbert. One of the difficulties with such a phrase is that it has such unfortunate connotations. This is the second time that I have spoken in the debate—I am a relative novice to many in this Chamber—and I commend the assiduous work of the noble Lord, Lord Chalfont, in following the issue. It has been a tortuous process over many debates and there has been a real result from the work that he has undertaken. The conclusion of the board of inquiry could not have been arrived at if the board of inquiry had been held today. The charge of "gross negligence" could not have been placed at the door of the pilots. That is a real achievement. However. the other aspect that has to be looked at and which has been the subject of most speeches is that of onus of proof. There appears to be a fundamental difference between a board of inquiry and a court of law. That is perhaps why there is such an even spread of opinion—I noted that while writing against noble Lords' names whether they were for or against. It goes to the heart of whether one believes that a board of inquiry was what was being undertaken—that was eruditely explained to us by the noble and gallant Lord, Lord Craig—or whether one was discussing the criteria that would have to be met by a court of law, a point so ably expressed by the noble Lord, Lord Brennan. Like many noble Lords, I have to admit that on reading the evidence I have vacillated over which side I should come down on. It is an extremely complicated issue. To begin with I believed that the case was clear cut; that because there must be doubt in people's minds, the air marshals must have overcome that hurdle. I then thought of some of the personal experiences I have had living next to a training area. My house is on the flight path of helicopters and I have seen large numbers of them. Unfortunately, I have also seen a large number breaking height restrictions on a fairly regular basis. It happens and one notices it when one lives underneath their flight path. Therefore, I do not see it as incomprehensible that pilot error was to blame, as my noble friend Lord Hooson pointed out. It is extremely unfortunate if that were the case and I would not like to put forward the charge of gross negligence. The pilots had a short period of time in which to make decisions and unfortunately there were tragic consequences. It is a question of whether noble Lords believe that the onus of proof has been met on pilot error or an unexplained mechanical error. I accept the conclusions of the committee, which has come forward with a considered report. However, I have also been swayed by the arguments put forward by many noble Lords who have practical flying experience and have dealt with helicopters. It is interesting to note that helicopters have one of the highest insurance ratings of any form of transport. I hope that the noble Lord, Lord Chalfont, will not press his amendment. The committee has put its report before the House and I believe that the House has accepted it. But the Government have also replied and they have rejected to a degree the findings of the committee. I hope that it is left at that because I believe that the noble Lord's amendment will go a great deal further and perhaps detract from the excellent work undertaken by the committee. However, if the noble Lord, Lord Chalfont, pushes the matter to a vote, it is for each individual Member to make up his own mind and to use his judgment.
My Lords, I am extremely grateful to the noble and learned Lord, Lord Jauncey, and his extremely strong Select Committee for answering a question that I was unable to decide myself. I remind the House of my somewhat peripheral interest. A few noble Lords mentioned party politics. As far as I am concerned, this is a matter for the House and my noble friends behind me can vote and speak as they feel appropriate.For me, this has been far and away the most difficult issue to deal with in my short time in your Lordships' House. For obvious reasons, it is most sensitive and complex and technical legal issues are involved. I am also acutely aware that we are interfering with military discipline and opinions are sharply divided across the House. Some noble Lords may believe that pensions and compensation are an underlying issue. Can the Minister confirm that all the families of the aircrew and passengers are appropriately provided for and that changing the findings will not alter those arrangements? It is important to recognise that at one time the RAF had an unnecessarily high accident rate. It must be the objective of the air staff to maintain a low accident. rate by having robust procedures for dealing with accidents. However, that objective will not be achieved if there is any perception of unfairness or unreliability in the proceedings. Some noble Lords questioned the wisdom of setting up a Select Committee. I believe that it was the right course of action. The matters are certainly too complex for me to decide and I know that other noble Lords have the same problem. I am extremely grateful to the noble Baroness, Lady Symons of Vernham Dean, for acquiescing to the setting up of the Select Committee. I do not believe that the Select Committee has set a dangerous precedent. Only a noble Lord of the standing of the noble Lord, Lord Chalfont, could succeed in persuading the House to set up a Select Committee and it will certainly remain an extremely unusual procedure. The real nightmare would be a judicial review of ministerial decisions when they support the chain of command. One overriding advantage of the Select Committee is that it brings the matter to a conclusion. I cannot speak for the usual channels, but I would he surprised if they allocated more time to this matter. I do not intend to cover the arguments for and against the pilots. I voted for the Select Committee to do that and your Lordships have debated the issue in detail today. It is entirely proper that we should have had this full debate, which has been well informed throughout. Some noble Lords raised the issue of cockpit voice recorders. It was extremely unfortunate, to say the least, that CVR was not included in the mid-life upgrade of the Chinook. It is worth examining how we have got to where we are now. I am certain that the board of inquiry was composed of officers of the highest calibre. They will have hoped privately that they could find no human failing in anyone. They will have done their utmost to find the real cause of this terrible accident. They will not have enjoyed their task, stimulating though it may have been. Like many noble Lords, I was confident that the RAF had an extremely good air accident investigation procedure. I assumed that it was at least as good as the civil procedure—that was until I read the Tench report of 1987, which covers the investigation of aircraft accidents in the services. Can the Minister tell the House whether he has read the Tench report? It can be easily found in the Library if noble Lords are interested. The background is that in 1986 my noble friend Lord Trefgarne commissioned Mr William Tench, who was the recently retired chief investigator of the Air Accident Investigation Branch at the Department of Transport, to produce the report. My noble friend apparently encountered a certain amount of resistance from the Air Staff. Tench reported in January 1987. His analysis of the problem covers 17 pages. He tries to be diplomatic and tactful, but nevertheless it is an extremely interesting report. For example, on page 2 he states:
On the same page he continues:"I have seen no record of the appointment of any person expert in the techniques of accident investigation or the analysis of flight recorded data being appointed as members of the Board".
On page 9 he states:"The members of the Board receive no formal training in aircraft accident investigation and seldom have any previous experience of this type of work; at best a member may have served on one previous Board of Inquiry".
In his summing up of the current situation he states:"A disturbing feature is the influence which senior officers seek to exert on the investigation process, particularly in the RAF. Presidents of Boards are conscious of a 'hovering presence' in the background which in reality is nothing more sinister than an anxiety to implement corrective measures as soon as they are identified".
Noble Lords will be aware that the AIB has an important role in helping the board and that it is highly regarded abroad. However, my noble friend Lord Bowness referred to the caveats of Mr Ken Smart of the AIB. I believe that Mr Smart's caution was wise. Noble Lords will have expected some improvement in the intervening years between the Tench report and the board of inquiry for this accident. Sadly, it still appears, as we have discussed, that no member of the board had previously sat on a similar board; and no member of the board had attended even a basic course in air accident investigation. My understanding is that the engineer member of the board, while extremely experienced, a specialist on Chinook and highly-qualified to do his normal duties, whose character and integrity are beyond question, was not a professional engineer. He was not a chartered engineer or anything equivalent. However, his duties as a member of the board were to ask penetrating questions of people who were professional engineers. I again emphasise that I am not calling into question the personal qualities of members of boards of inquiries. I am questioning whether they have the training and expertise to undertake their task. The noble and gallant Lord, Lord Craig of Radley, let the cat out of the bag when he said that boards of inquiry are appointed for their aviation expertise. He also explained that the RAF mercifully has experienced few accidents recently. However, that means that the RAF collectively has correspondingly even less experience in accident investigation. Will the Minister say whether he has complete confidence in the current service air accident investigation procedures, or will he instigate a review? Noble Lords will question whether any weaknesses identified by Tench impinge on this matter. I believe that they do. For instance, my noble friend Lord Bowness referred to the rather less than thorough interviewing of Mr Holbrook. Another difficulty is the non-FADEC simulation of a Mk 2 Chinook, a problem not originally recognised by the board. The air marshals properly relied on the board of inquiry in coming to their conclusions, but I do not find the board findings reliable; not for a lack of personal qualities, experience or dedication in its members, but because they are not air accident investigators. If the noble Lord, Lord Chalfont, presses his amendment he may not achieve his objective, but I shall support him. I am sure the whole House will join me in offering our sincere condolences to all those so painfully affected by this tragedy. We also need to thank those who had the difficult task of dealing with the physical aspects of the accident. We also sympathise with those who had the unenviable task of carrying out the investigation."The reason for this poor performance is that the Board of Inquiry system, by its very nature, ensures that in all but the unusual cases when an officer is appointed to a Board on more than one occasion in his career, the investigation is conducted by complete novices. There is no opportunity to accumulate knowledge in the techniques of accident investigation, nor is there any continuity of effort".
My Lords, I thank all noble Lords who have spoken in the debate. It is very late and I do not intend to take up any more of the House's time than is necessary. The standard of speeches on both sides has been superb. It is rather invidious, but I should like to pick out the speech on the one side of this argument of my noble friend Lord Brennan and on the other of the noble Lord, Lord Glenarthur. Both speeches were outstanding.I too begin by extending my deepest sympathy to the families and friends of all those who lost loved ones in the crash. There is no doubt that the events of that June evening nearly eight and a half years ago were a tragedy and that the sad consequences of the accident will remain with all those involved. I am conscious, as everyone must be, that the constant revisiting and questioning of the circumstances of the accident can only add to the heartache of all 29 of the bereaved families. We should not forget any of them. Before reflecting on the points raised during our debate, I want to echo the many words of appreciation and thanks that we have heard this evening for the work of the Select Committee. I am delighted that all members of the committee have spoken in tonight's debate. I thank them for staying so late in order to do so. It was, of course, a highly unusual step to set up the committee in the first place. Indeed, the House will recall that it chose to do so against the advice of the Liaison Committee. One of the reasons given by the Liaison Committee for issuing what was, perhaps, prescient advice against the establishment of the committee speaks for itself:
However, the noble and learned Lord, Lord Jauncey, and the rest of the Select Committee did everything that they possibly could to get into the bowels of this particular problem. The House is grateful to them for their efforts and diligence in reviewing the justification for the finding of negligence, which was not an easy task. Your Lordships know very well the Government's response to the Select Committee report, published some three-and-half months ago. Indeed, a variety of views and opinions on our position have been expressed in this debate. But there was, and is, simply no reason why two highly regarded and well-trained special forces pilots should have flown at speed so close to the Mull, into poor weather that they had been warned to expect. As has been said, this was contrary to all their training. The inquiry's two senior reviewing officers concluded that the failure to take action before the waypoint change to avoid the high ground ahead amounted to gross negligence. Some may think that that was an easy decision for those air marshals to have taken; but it was the opposite. It was not taken—indeed, could not have been taken—lightly. Sir John Day, one of the reviewing officers, summed up his feelings in evidence to the committee by saying that it was the "hardest decision" of his career, and one that was taken only after the fullest consideration of all the evidence. Without doubt, it has been one of the hardest duties that defence Ministers have had to perform, and consider, over many years. I rather share the resentment of my noble friend Lord Gilbert at the comment of my noble friend Lord Brennan that Ministers have been sucked in by the Ministry of Defence, and that, somehow, political considerations would have been of some importance. My goodness! The political considerations would have been to give way, and to do so a long time ago. However, to the credit of defence Ministers, both in the previous Government, and, I hope, also in this Government, they have not done so. That easy course has not been taken. It seems to me that that particular remark in an otherwise superb speech was slightly unfair. The material in the report of the noble and learned Lord, Lord Jauncey, has been studied in great depth. We have looked at the matter from every possible angle. and published our findings to allow others to scrutinise them. I can understand that many would have wished us to reach a different conclusion from that of the reviewing officers, and that would certainly have been the easy way out. But just because it would have been easy would not have made it right. Those who have campaigned for the finding of negligence to be overturned have questioned how two well-regarded and highly trained pilots could have conducted this flight in the way that they did. The simple answer is that we do not know; and we probably never will. But, as the noble and gallant Lord, Lord Craig, clearly and most thoroughly explained, pilots are human. They can and do make mistakes—even the very best of them. Indeed, I have spoken to very experienced pilots who have told me that they have come within a whisker of disaster through their own actions, or inactions. All of us have heard about such experiences tonight. The noble Lord, Lord Glenarthur, told us the story of the close brush that he had with death. I turn to the findings of the committee, which commented in particular on the original simulations that Boeing carried out to assist the board of inquiry. It was only right that those comments should be brought to Boeing's attention. We also wanted to get to the bottom of any possible ambiguity. So we commissioned further work, which used a more advanced model fully reflecting FADEC technical parameters and flight performance. I remind noble Lords that Boeing is the aircraft manufacturer and the design authority, which renders it uniquely qualified to comment on the aircraft's capabilities. We have published its full report and the supporting detailed documentation. Some Members, including the noble Lord, Lord Jacobs, have suggested that the results of this further work constitute new evidence and provide an opportunity to revisit the board of inquiry finding. But Boeing's latest work, which considered its previous work in great detail, has shown that the original results for airspeed shortly before impact were on the high side. However, it also confirms that the average airspeed, which was fairly constant, was high. As noble Lords who studied our formal written response to the committee's report will know, all this information has enabled us to determine a clear picture of the final flight path. Of course no simulation can tell us precisely what happened, but Boeing's work has clarified further the capabilities and constraints of the aircraft, enabling us to dispel finally the hypotheses relating to technical malfunctions that have been raised in an endeavour to explain or cast doubt on the cause of the accident. I do not intend to dwell on technical matters related to the flight, because there is not enough time. However, they warrant detailed attention, and I direct noble Lords to our full written response on the matters should they wish to pursue them further. It is appropriate to remind the House that there has been much speculation regarding the last 20 seconds or so of the flight. The committee accepts that it is highly unlikely that the crew would have made a waypoint change if they had thought they were not in control. Unless I misread paragraph 163 of the report, the committee accepts that the crew were in control at the waypoint change. In any case, the reviewing officers' determination was not predicated on what may or may not have happened in the final seconds, although we remain convinced that the aircraft remained fully serviceable and under pilot control until impact. There is simply no evidence to the contrary. Some still doubt whether the "absolutely no doubt whatsoever" test could be met. We recognise that this is a very high standard of proof. But the unique work of the RAF necessarily demands that the highest standards be set. The MoD and the RAF rightly demand the very highest standards of airmanship, about which we have heard lots from people who know about it. The responsibility to take a very high degree of care is rightly imposed upon a pilot flying an aircraft or responsible for its maintenance or control. A finding of negligence amounts to severe criticism, but it is the standard that was set. I emphasise that this standard was a practical test and was capable of being met. As I made clear in my Statement to the House in July, the reviewing officers were required to be in no doubt that the pilots' negligence was a cause—although not necessarily the sole cause—of the accident. Negligence can itself be the cause of an accident, or it can be one of a number of causative factors. The reviewing officers were charged with considering all the evidence as a whole. They were entitled to call on their own knowledge and experience of military flying and to take proper recognition of the very high standard of airmanship that is required of RAF pilots. That is precisely what they did. We have discussed the definition of negligence that prevailed. The Guide to the Consideration of Human Failings, which was referred to, could not make the definition clearer. According to paragraph 4 of the document, negligence may be defined as:"Select Committees are a good vehicle for the examination of public policy issues but are not equipped to replicate the function of the higher courts in addressing alleged miscarriages of justice".
"(a) The omission to do something which, in the circumstances, a reasonable person would do or,
I cannot see why that definition was not referred to in the Select Committee's report. The document continues:(b) The doing of something which, in the circumstances, a reasonable person would not do or would do differently".
Then come these words:"When related to flying aircraft or to aircraft maintenance, neglect means a breach of duty to take care, or in other words, carelessness in a matter where care is demanded. The duty to take care varies according to the operation being performed and a duty to take a very high degree of care is rightly imposed upon a person flying an aircraft or responsible for the maintenance of its controls".
Those were the guidelines under which the air marshals had to work. Others have argued that this is not really a legal matter, but one of natural justice. It is true that this is a sensitive and emotive case. As I have said, many people would like a different conclusion from the one we have reached. We understand that view. However, where human factors were judged to have contributed to the accident, the RAF rules at the time required the reviewing officers to reach a view on the culpability of the air crew concerned. It was their duty to make such a judgment and they could not avoid it. The same principle applies now to our consideration of the various reports into the accident. It would be very tempting for us to take an easy, politically attractive and no doubt popular move by acceding to the amendment of the noble Lord, Lord Chalfont, but it would be wrong to do so. Others have taken the view that changing our rules to no longer find blame shows how unjust it was to find the Chinook pilots negligent. This is a matter of general principle. We cannot turn back the clock. The board was properly convened and conducted in accordance with the procedures that existed then. The suggestion that we should disturb the rules of the day because they have subsequently been altered is clearly misconceived. The primary purpose of any such board of inquiry is to determine the cause of the accident. That is what was done. The Government do not believe that the reviewing officer's judgment was incorrect. I assure noble Lords that we have every faith in the board of inquiry procedure and those who contribute to it—both then and now—to do so on the basis of their specialist skills and experience. The noble Earl, Lord Attlee, referred to the Tench report. The report was commissioned by the noble Lord, Lord Trefgarne, in 1986, when he held the job that I hold now, and was drawn up by Mr Tench. The report was carefully considered at the time, but was not accepted. It made recommendations for improving service accident investigation procedures. It included proposals for establishing a tri-service accident investigation unit and other matters. There was much in the Tench report that was ahead of its time and has subsequently been taken into government policy, but we cannot turn back the clock. There is nothing in the report that undermines the findings of the board of inquiry, which was properly constituted and carried out in accordance with the rules that applied in 1994. This was obviously a tragic accident. It is entirely understandable that the families of the deceased pilots continue to fight to absolve them of any blame. I acknowledge and respect the unstinting work carried out by the noble Lord, Lord Chalfont, in support of the families and the tireless efforts of his campaign group in their genuine belief that a wrong needs to be corrected. In that regard, my right honourable friend the Secretary of State and I have been pleased to meet the noble Lord and others on a number of occasions, the last of which was very recently, in our endeavours to resolve the issue. However—and this is the most important thing that I shall say tonight—I strongly believe that it is now time to move on. The noble Lord, Lord Chalfont, has moved an amendment to the Motion of the noble and learned Lord, Lord Jauncey, that the House take note of the Select Committee's report. This is a highly unusual step. Regardless of the merits, from a House of Lords viewpoint it is a backward step. House of Lords Select Committees deservedly have a high reputation gained over many years. An important part of that reputation is the way in which their reports are dealt with on the Floor of the House. The chairman invites the House to take note, and a full debate ensues, just as has happened tonight, with sincerely held and different points of view expressed cogently and with passion. The take note Motion is then carried. There is no precedent, save one in very different circumstances 24 years ago, for the course that the noble Lord, Lord Chalfont, proposes. If he puts this to the vote, it will set an extremely unfortunate precedent. It is often said that the conventions of this House are there for a purpose and it is unfortunate to breach them, however genuine and heartfelt the cause may be. Even at this late hour I urge the noble Lord when he replies to consider not just what I have said but what other noble Lords right across the House have said and to withdraw his amendment. I repeat that although many and varied hypotheses have been put forward to explain the accident, the only realistic explanation is that found by the reviewing officers of the board of inquiry. However, I make the pledge, as has been made by my right honourable friend on many occasions, that the Government will of course look again at any new material should it arise. I agree very much with what the noble and gallant Lord, Lord Guthrie, said; namely, that the explanation for this accident is basically not complicated. It is difficult, but not complicated. Indeed, I strongly agree with what the noble and gallant Lords, Lord Guthrie, Lord Vincent and Lord Craig, the noble Lords, Lord Glenarthur, Lord Gilbert, and others have said on this matter. As they approached land, it seems that the pilots would have been aware that their visibility was about to reduce significantly. Had they been flying with the minimum visibility allowed for visual flight rules, before the waypoint change they would have seen the land mass of the Mull 1,000 metres away and would have recognised their perilous position. They should have taken prompt action either by flying higher or by turning away. If they were in fact already in cloud, then by definition they were in breach of visual flight rules, and should have converted to instrument flight rules and immediately climbed to safety altitude. The finding of negligence is underpinned by the fact that they failed to take either of those avoiding actions. That is our case. I am afraid that nothing I have heard tonight makes me doubt that case. The noble Earl, Lord Attlee, asked whether appropriate provision had been made for the dependants of the two pilots and, indeed, for all others on board. I confirm that that is so. I remind the noble Earl, Lord Attlee, that the question was posed by the noble and learned Lord, Lord Jauncey, in a letter to my right honourable friend the Secretary of State before his committee first met. I say for the benefit of the House that it is published at page 83 of the written evidence which states:"In such circumstances, what might be trivial in other fields may, when associated with aircraft operations, amount to negligence which justifies severe criticism".
Both families are being paid abated pensions taking into account the compensation they received. I hope that that gives the noble and learned Lord the answer that he was looking for. I end by saying that the Government's position will be unwelcome to those campaigning against the decision. No one has benefited from the protracted discussions that have been played out in the media with regard to this tragic flight, least of all the relatives of those who died. But we believe that the reviewing officers' findings continue to withstand the most rigorous scrutiny. In those circumstances it would he wrong to interfere. I suggest that the time has now come for us to move on. I very much hope that the House will pass the Motion in the name of the noble and learned Lord, Lord Jauncey."Full and final settlement of the claims for compensation for the dependants of the two deceased pilots was reached on the basis of 50 per cent contributory negligence and with both parties acknowledging (although not necessarily agreeing) the basis on which the settlement was reached. The families of the deceased pilots have not admitted liability".
Lord Jauncey of Tullichettle
My Lords, at this late hour I have very little to say. The noble Lord, Lord Gilbert, was somewhat incredulous when I said that the first waypoint was the Mull of Kintyre lighthouse. In doing so, I relied on the report of the board of inquiry. The noble Lord will find the relevant reference on page 11 at subparagraph (2).The noble and gallant Lord, Lord Craig, criticised our guidelines on the standard of proof. They involved the phrase, "absolutely no doubt whatsoever". We had to find some definition for that. It is not a standard known to the law and it is clearly higher than the highest standard of proof in the criminal law. We therefore thought it incumbent to establish what would be appropriate. That explains our approach. On the suggestion that our criticism of the appointment of Wing Commander Pulford was unfair, we simply had in mind the fact that one of the air marshals pointed out that this was the worst tragedy that the Royal Air Force had suffered since the war. Having regard to some of the fairly light questioning by the board, we thought that it might be advantageous to have an officer with more experience of conducting a board of inquiry. I do not propose to deal with the comments of other noble Lords, who clearly did not approve of our conclusions. I make one general observation. Many noble Lords referred to the fact that there was no evidence for this or for that; however, given the high and totally unusual standard of proof, the test was not whether evidence could be found but whether there were possible or plausible explanations that had not been disposed of. There is no doubt in this regard that the aircraft flew low and at speed into cloud and then into the Mull. Stopping there, the answer is, as we say in the law, res ipsa loquitur: the pilots were to blame, and that is the end of the matter; we need not go any further. However, one must bear in mind that the pilots made the waypoint change, which was clearly designed to give them a course for waypoint B at Corran. They indicated their intention to fly VFR the whole way. Those two matters created doubt in our mind about what had happened and whether the aircraft was under control throughout the passage from there to the crash site. I question the Minister's observation that the new Boeing simulation threw light on possible malfunctions. It did not do so at all. It produced findings about the possible speed and rate of climb beforehand but, as I understand it, it certainly did not confirm or dispose of any possible mechanical malfunctions. I notice that my noble friend Lord Tombs is nodding his head. When the fact of making the waypoint change and the declared intention to fly IFR are taken together with possible defects that could not be excluded by the board or Cable, the senior air investigator, one is driven to wonder why the pilots chose to fly on into conditions that they could see and which necessarily involved VFR. It is that which, in the view of the committee, raised doubts as to whether the aircraft was under control at the critical time. So far as arguing that the aircraft was in danger at the waypoint change, I suggest that that presupposes that the aircraft was going to continue its course and speed and that it was not necessarily in danger. Had it slowed down and altered course to Corran, that would have reduced the radius of turn. We do not know what the intentions were. But if that had been the intention and the pilots were thwarted, I very much doubt whether the pilots could have been said to be negligent in having brought the aircraft to that position. I have nothing further to add.
My Lords, there has been a certain amount of talk about the wisdom or rectitude of a House of Lords Select Committee considering this problem. I find that an extraordinary argument. This is part of the Parliament of this country. If Parliament is not able to scrutinise the activities of the executive in a Select Committee or in any other way, I believe that we shall get into very dangerous waters. There has also been talk of setting a precedent. I must confess that I am not terribly frightened about setting precedents. If setting a precedent will correct manifest injustice, I shall be proud of doing so and not ashamed.I have heard some very strange statements tonight about this accident and about the verdict of the air marshals and the Select Committee. I can only say that, in listening to some of the contributions, I have been reminded of the statesman who once said, "I wish I could be as certain of anything as he is of everything". There has been much talk of the need for us poor, ignorant lay people to defer to the views of aviation experts. This is not a question for aviation experts. Any suggestion that it is is probably what has been wrong throughout the whole of this long, seven-year business. It is aviation experts who have produced the briefs for Ministers year after year. The same brief for every Minister and the same words have been produced every time the subject has come up. Airmanship may be a very sacred concept in aviation, but aviation has absolutely nothing to do with what we are supposed to be discussing tonight. This is a question of natural justice and of putting right a terrible miscarriage of justice. It is nothing to do with airmanship. As I said, airmanship may be an extraordinarily useful concept in aviation when one is flying an aeroplane or when the Royal Air Force is engaged in operations. But this is a question of natural justice and law—not airmanship. I wish that, in approaching this problem, we had been able to concentrate a little more on the words that I used at the beginning of my earlier speech: "no possible doubt whatsoever". Very few times have I heard those on the other side of this argument refer to that standard of proof. What I have heard seems to suggest that there is now some disposition to accept a different definition of what "no possible doubt whatsoever" means and what it refers to. I must confess that there is no doubt in my mind as to what it means; nor, I should have thought, would there be any such doubt in the mind of anyone who speaks English. That is what the standard of proof is and what is required in these cases. I have heard nothing to challenge the finding of the Select Committee. In my amendment all I ask is that the House should accept it and not, as the Government have done, reject it. In the course of the debate we have heard the views of some noble and gallant Lords. In case people feel that there is a general consensus among noble and gallant Lords, perhaps I may read two sentences from a letter that arrived in my post this morning from a former Chief of the Defence Staff, a Member of this House who is not able to be present this evening. He has given me permission to quote from his letter. He states:
He underlines the word "wrong" several times. At the end he asks this question:"I have no personal doubt whatsoever and never have had since the day of the crash that the two air marshals, as you call them, were wrong".
That is the question asked by a former Chief of the Defence Staff, not by me. It has been suggested that I should withdraw my amendment. I have no intention of doing so. We have had a long debate and I believe that it would be discourteous at the end of such a long debate not to test the opinion of the House and I intend to do so."I wonder exactly who in the MOD is behind this dogged refusal to let the truth prevail and, more to the point, what drives him?"
On Question, Whether the amendment shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 65.
Division No. 2
|Acton, L.||Lane, L.|
|Alderdice, L.||Lindsay, E.|
|Attlee, E.||Liverpool, E.|
|Beaumont of Whitley, L.||Maginnis of Drumglass, L.|
|Bowness, L.||Mancroft, L.|
|Bridgeman, V.||Mayhew of Twysden, L.|
|Brightman, L.||Methuen, L.|
|Bruce of Donington, L.||Michie of Gallanach, B.|
|Chalfont, L. [Teller]||Monson, L.|
|Cope of Berkeley, L.||Norton of Louth, L.|
|Fitt, L.||Onslow, E.|
|Gordon of Strathblane, L.||Park of Monmouth, B.|
|Goschen, V.||Pearson of Rannoch, L.|
|Hooson, L.||Slim, V.|
|Jacobs, L. [Teller]||Thomson of Monifieth, L.|
|Kingsland, L.||Tombs, L.|
|Laird, L.||Warnock, B.|
|Andrews, B.||Harris of Haringey, L.|
|Ashton of Upholland, B.||Hilton of Eggardon, B.|
|Bach, L.||Hollis of Heigham, B.|
|Bassani of Brighton, L.||Howells of St. Davids, B.|
|Blackstone, B.||Hunt of Kings Heath, L.|
|Bragg, L.||Irvine of Lairg, L. (Lord Chancellor)|
|Brooke of Alverthorpe, L.|
|Burlison, L.||Jay of Paddington, B.|
|Burnham, L.||Jones, L.|
|Campbell-Savours, L.||Judd, L.|
|Carter, L.||Lyell, L.|
|Chalker of Wallasey, B.||Macdonald of Tradeston, L.|
|Chandos, V.||McIntosh of Haringey, L. [Teller]|
|Cooke of Islandreagh, L.|
|Corbett of Castle Vale, L.||MacKenzie of Culkein, L.|
|Craig of Radley, L.||Mackie of Benshie, L.|
|Davies of Coity, L.||Massey of Darwen, B.|
|Davies of Oldham, L.||Pitkeathley, B.|
|Dubs, L.||Ramsay of Cartvale, B.|
|Evans of Temple Guiting, L.||Rendell of Babergh, B.|
|Falconer of Thoroton, L.||Richard, L.|
|Farrington of Ribbleton, B.||Roper, L.|
|Fyfe of Fairfield, L.||Sainsbury of Turville, L.|
|Gale, B.||Scotland of Asthal, B.|
|Gibson of Market Rasen, B.||Smith of Leigh, L.|
|Gilbert, L.||Symons of Vernham Dean, B.|
|Glenarthur, L.||Thornton, B.|
|Goldsmith, L.||Vincent of Coleshill, L.|
|Goudie, B.||Warwick of Undercliffe, B.|
|Gould of Potternewton, B.||Whitaker, B.|
|Grenfell, L.||Whitty, L.|
|Grocott, L. [Teller]||Williams of Mostyn, L. (Lord Privy Seal)|
|Guthrie of Craigiebank, L.|
|Hardy of Wath, L.||Woolmer of Leeds, L.|
Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.