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Mr. David Trimble (Upper Bann): Before the right hon. and learned Gentleman proceeds with that thought, may I take him back to the Government's view that the matter should be reopened only if there is new evidence? Is it appropriate to maintain that position, given the analogy with criminal convictions? The law has been changed to allow those cases to be reopened when there is no new evidence but when there are grounds for believing that a mistake has been made. Should not the Secretary of State's approach to boards of inquiry be analogous to that now adopted by the law with regard to criminal convictions?
Mr. Campbell: As well as being the leader of his party, the right hon. Gentleman is by profession a lecturer on law—
Mr. Campbell: Once a lecturer on law, always a lecturer on law; I am happy to accede to the right hon. Gentleman's proposition.
The original inquiry was—at least generically—a tribunal. It was necessary for it to gather and consider evidence, to reach conclusions on that evidence and then to exercise a judgment. As the Secretary of State rightly said, when we consider the quality of that decision we must do so on the basis on which it was taken and in the light of the rules applying at the time.
In parenthesis, I have always wondered whether, if an action of judicial review had been taken within the conventional time limit for bringing such actions, such an action would inevitably have succeeded. I have never received sufficient answer on that point.
Like those charged with the responsibility of the board of inquiry, however, we have to consider the matter against the background of the rules then applying. At the heart of that consideration were the rules of the Royal Air Force, which required absolutely no doubt. It is instructive to read paragraph 14 of the Select Committee's report—those words have already been echoed to some extent. The paragraph in the report stated that paragraph 9 of the rules
- "demanded a particularly high standard of proof, higher than is required of the prosecution in a criminal case in the United Kingdom ('beyond reasonable doubt'), and much higher than is required in
- civil litigation ('on the balance of probabilities'). It was no doubt set so high because deceased aircrew are no longer available to offer their own account of events."
- "We consider that it requires all other plausible explanations for the crash to have been positively excluded. If any such explanations remain possibilities, the standard of proof has not been met."
Having considered that, let us remind ourselves of the fact not only that that standard was considered by the Select Committee, but that in determining what his conclusions should be in the fatal accident inquiry, the sheriff, Sir Stephen Young—to whom I shall return in a moment—was unwilling, on a balance of probabilities, to hold that the MOD explanation had been established.
These are human affairs, and it is inevitable that emotions will play a part. I believe that it is inevitable that those campaigning for the pilots will find 100 per cent. objectivity difficult to maintain; equally, those intent on sustaining the original decision may be similarly disadvantaged. That is why we must try to divorce ourselves from those emotional considerations and look outside and elsewhere.
I have already referred to Sheriff Sir Stephen Young, who considered 16 days of evidence, when all the relevant interests in the crash were represented by counsel or solicitors and there was the opportunity for cross-examination. Yet despite all that, on a balance of probabilities—the appropriate standard in a fatal accident inquiry, which in Scotland is roughly, but not entirely, equivalent to a coroner's inquest in England—the sheriff was unable to support the MOD conclusion. To those hon. Members who have not yet done so, I recommend reading that judgment, because it is as close an analysis of the issues involved as one could hope for, and it reflects extremely favourably on Sheriff Sir Stephen Young—a reflection that is also corroborated by references in the Select Committee report.
The second external point of reference is the House of Lords inquiry—chaired by Lord Jauncey, one of Scotland's most eminent judges of recent times—and composed of four, plus himself, independently minded peers. Against that background—first, of the fatal accident inquiry and, secondly, of that report—how on earth can anyone say that the standard of absolutely no doubt whatever can have been achieved?
I have heard it said, anecdotally, that the unwillingness of those with initial responsibility to accept a different conclusion may be based on a determination to maintain the integrity of the inquiry system or, indeed, the chain of command. As for the inquiry system, as the Secretary of State has already told us, the regulations have been changed, but as for the integrity of the chain of command, of course, that is important. Anyone with any knowledge or understanding of the armed services knows that the integrity of the chain of command is essential for good order and discipline and that it must be respected; but how much more is the chain of command likely to be respected if those involved are sufficiently confident to recognise when an error of judgment may have been made and should be corrected?
In the conduct of public affairs—perhaps no more frequently than for those Ministers who occupy the Treasury Bench this evening—the exercise of judgment is commonplace. I think no less of those who acknowledge that they have made an error of judgment and are anxious to put it right. In particular, I have in mind Sir Malcolm Rifkind, with whom I have talked about this matter and whose views are now well known as a result of the interviews that he has given on radio and television, and of at least one article that he has written in a national newspaper. I believe that—if he catches your eye, Madam Deputy Speaker—the right hon. Member for North-East Hampshire (Mr. Arbuthnot), who was also a Minister at the MOD at the relevant time, may have something to say about what he now believes, compared with the part that he played in the original decision.
The last paragraph of the Select Committee report is as succinct a statement as one could possibly hope for:
- "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."
8.35 pm
Mr. Martin O'Neill (Ochil): I am pleased to follow the right hon. and learned Member for North-East Fife (Mr. Campbell), as I agree with much of what he said and with the way he addressed the issue this evening. This is a difficult issue, and I am not altogether certain that the tactic of holding this debate tonight was the best one. There is a case for holding a debate, but it is certainly the case that the other place responds to Select Committee reports in a rather more leisurely way than we expect Ministers to do in the House. Having said that, a report of the complexity and rigour of that produced by Jauncey requires time.
I have considerable sympathy with my right hon. Friend the Secretary of State not only in the length of time that he wants to take over this issue, but in ensuring that previous evidence that is now regarded as suspect is re-examined. I do not pour scorn on the desire to carry out other simulations, but I would include the qualification that, if they are carried out, they ought to involve a degree of independence. I accept that there is a devilishly difficult problem—such is the complexity of the equipment and the monitoring, that, outside the companies and the customers, not many people are capable of interpreting the data, but it is incumbent on the MOD to seek a means of doing that.
I should like to think that, equally, some of the legal advice that my right hon. Friend is seeking will be incorporated in the reply in a form that lay people such as ourselves can not only understand, but identify as legal advice. Many hon. Members have had misgivings about that because there has been a sense that the MOD has dealt with this issue as an in-house operation. There is often the rather depressing form of reaction to any evidence that emerges. There is more than a smack of
the Bourbons about the MOD; it repeatedly conveys the impression of having learned nothing and forgotten nothing. In part, that is attributable to the incrementalist way in which the evidence was gathered prior to Jauncey.A number of the reports seized on technical data and other matters. Very often, the technical data were probably less than the sum of their parts, but we have now got a comprehensive collection of all the available evidence, which has been addressed with considerable style. I use the word "style" without in any way wishing to undermine the content on which the work is based. Indeed, many of us who have discussed this matter with Ministers—I have probably been at this game as long as most and longer than pretty well anyone else—have heard the mantra that pilots of Chinook ZD 576 flew at the wrong speed, on the wrong course, in the wrong place, at the wrong time, in poor weather and visibility, and caused the helicopter to crash.
That was the standard response from Ministers at the Dispatch Box or in private conversation. It was put a little more eloquently by Sir William Wratten, when he said:
- "Lamentably, all the evidence points towards them"—
- "having ignored one of the basic tenets of airmanship, which is never to attempt to fly visually below safety altitude unless weather conditions are unambiguously suitable for operating under visual flight rules."
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