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The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, before the noble Lord concludes, I inform your Lordships that when I respond to the debate on behalf of the Government, I shall make it clear that I shall not ask your Lordships to oppose the Motion of the noble Lord, Lord Chalfont.

Lord Chalfont: My Lords, I am most grateful to the Minister for that intervention. It may avoid the need for a good deal of detailed argument. I find that a very constructive step forward.

Moved to resolve, That, whilst recognising that the final decision will be a decision for the whole House, it is desirable that the Liaison Committee should consider the appointment of a Select Committee to consider all the circumstances surrounding the crash of Chinook helicopter ZD 576 on the Mull of Kintyre on 2nd June 1994.--(Lord Chalfont.)

7.48 p.m.

Lord Eden of Winton: My Lords, it is a privilege to follow the noble Lord, Lord Chalfont, whose persistence and tenacity in pursuing this matter deserve to pay off. In view of the Minister's intervention, it seems that it has done so. I am sure that all who have an interest in it are extremely grateful to the Minister for her comments.

Like all noble Lords who have followed this matter, I have studied the speeches, debates and ministerial answers in both Houses and the reports and press comment. That has left me with a profound sense of unease. I understand the position that the Minister

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adopted in previous replies to debates of this nature and that adopted by the distinguished Air Marshals, Sir William Wratten and Sir John Day.

The two pilots, who were self-authorised--that is, cleared to determine their own flight route--were flying at an extremely low level under visual flight rules which required them to keep in sight of the surface. They chose to fly towards the Mull of Kintyre, where they knew that the weather conditions were bad, and they went straight towards high terrain. Only at the last minute did they appear to climb slowly, turning away right at the end, just before the crash.

That really is quite extraordinary. I find it so extraordinary that it really is hard to believe. There must be some explanation for it. Was it pilot error, pilot negligence? Surely not in this case.

Let us consider this for a moment. These were two skilled and highly experienced pilots who had been cleared for special forces operations. They were well aware of the particularly sensitive nature of the precious human cargo they were carrying. Yet, with otherwise clear skies, they apparently chose to fly straight at and into a bank of low cloud concealing steeply rising terrain at more than 1,400 feet above sea level. It just does not add up.

It is even more astonishing when one recalls that one of the pilots, shortly before that flight, had expressed his strong anxieties to his father, asking him to look after his young family should anything happen. Why did he do that? Why did he have a premonition of disaster? What was it about that aircraft that gave rise to such concerns?

Evidently there had been a number of problems affecting the Chinooks in 1994, prior to that. May not some of them have been connected with the software used in the full authority digital control? It had already been suspected of initiating what is known as "uncommanded flight control movements" in other instances; for example, sudden bursts or reductions of speed. It has been noted that in this case the Chinook was flying at great speed.

The honourable Member for Tatton, in a debate in the other place on 27th June, reported that according to the Ministry of Defence there were 6 UFCMs involving Chinooks in 1994, five in 1995, six in 1996, five in 1997, seven in 1998 and six in 1999. That is 35 incidents in all, in six of which the cause was never found. As he said, there is a steady pattern which suggests something disturbing and mysterious.

Given those facts, there are good grounds for a further and wholly objective examination of that tragic incident, including why it was that the day before the crash on the Mull of Kintyre the aeroplane and armament research establishment at Boscombe Down, the Ministry of Defence's own airworthiness assessors, had grounded non-operational Chinooks. It was the Air Marshal Sir William Wratten himself who overruled the Boscombe Down decision commenting that the grounding did,

    "nothing to engender air crew confidence in the aircraft".

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It certainly did not. Sadly, it would seem that at that time, in 1994, some lack of confidence was more than justified.

So if the finding of negligence cannot be set aside to end the matter there, then there are still too many questions to which no satisfactory answers have yet been given. As Sir William Wratten wrote in the Sunday Times on 18th June last year:

    "Why they [that is, the two pilots] elected to ignore the safe options to them and pursue the one imposing the ultimate danger, we shall never know".

Why indeed? We must try to find out and the inquiry proposed by the noble Lord will help us to do that.

7.55 p.m.

Lord Craig of Radley: My Lords, I have spoken in your Lordships' House several times about my confidence in the findings of the board of inquiry into this tragic accident. The board was properly constituted. It undertook a full investigation with the aid of the Air Accident Investigation Branch. The Chinook was being flown below safety height and into cloud. No technical evidence was found of any relevant flight malfunction, let alone one which might overwhelm the pilots' ability to manoeuvre into safe flight and discharge their primary duty of care for their passengers and aircraft.

The board of inquiry is not a court of law. Its overriding purpose is to establish what happened, particularly when so many lives were lost, and to learn lessons to help to avoid such a disaster in the future. The search for evidence is therefore very thorough. The professional aviation judgment--and that is the key judgment in this sad case--on the evidence found was a rational and reasonable one. In the absence of new and unconsidered evidence, it should stand.

Those who had the heavy responsibility to decide on negligence have not been persuaded that they were wrong, despite all the media and parliamentary scrutiny. A great deal of emotion and some confusion has clouded the fundamental issue of pilot responsibilities.

The Motion this evening is about the desirability of appointing a Select Committee to consider yet again all the circumstances surrounding the crash of the Chinook. But the circumstances have been most thoroughly considered and reconsidered over the past six years.

In this House four noble Lords--the noble Lord, Lord Henley, the noble Earl, Lord Howe, the noble Lord, Lord Gilbert and the Minister--have stood at that Government Dispatch Box and have given their support for the integrity of the board and its findings. Six Ministry of Defence Ministers have stood at the Government Dispatch Box in the other place and have equally strongly given their support. Do we ignore them all? Of course, they will have been briefed by the senior members of the board and by the Chief of Air Staff. But they will also have had the advantage of the most thorough consideration of the board's findings by their civilian secretariats. They will have had the opportunity to study the board's report far more

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thoroughly than has any other noble Lord who has ever spoken on this topic. That combination of 10 well-briefed senior Members of both Houses equals, if not betters, any ad hoc Select Committee in examining and understanding all the circumstances of that tragic accident.

Against that background, is it reasonable for the House to support yet a further examination by an ad hoc Select Committee as envisaged by the noble Lord, Lord Chalfont? I welcome the noble Lord's late change of wording which better recognises the reality of the House's procedures.

The House recently agreed to set up an ad hoc committee to consider the many complex arguments surrounding stem cell research. To do so, all the resources supporting one of the sessional committees, a science and technology sub-committee, had to be transferred. The Liaison Committee has had a number of other bids for Select Committees which cannot be met at all in the short term and some may be met in the longer term only if additional resources were to be approved and provided.

Noble Lords may agree that recent events such as the foot and mouth epidemic, criticisms of modern farming methods and food production or train accidents, to name but three, should also be candidates for inquiries in your Lordships' House. All have attracted great public concern and involved considerable loss of life and livelihood.

However, I do not advocate inquiring into any of those matters. I merely draw attention to difficulties that the Liaison Committee and the House must face in the allocation of available resources. I, for one, would question whether this tragedy, important as it is to the families of those involved, merits the appointment of an ad hoc Select Committee in your Lordships' House to consider what has been so thoroughly and extensively considered over the past six years.

8 p.m.

Lord Jacobs: My Lords, it is now widely known that on the 2nd June 1994 Chinook ZD576 left RAF Aldergrove in Northern Ireland to fly to Fort George, Inverness with a crew of four and 25 civilian and military personnel. The Chinook crashed on the Mull of Kintyre and there were no survivors. In the subsequent inquiry the two experienced pilots were found guilty of gross negligence in having failed to choose an appropriate rate of climb to overfly the mull.

I have never suggested that, on the basis of the evidence, the pilots cannot possibly be guilty of having caused the crash by gross negligence. However, the rules for a finding of negligence are formidable for there must be "absolutely no doubt whatsoever". That is a higher standard of proof than for a normal court where proof of guilt must be beyond reasonable doubt.

I have thought long and hard about the reasons that I should put before your Lordships as to why a Select Committee should be appointed, always accepting that a new inquiry, to which the Ministry of Defence is unwilling to agree, would be preferable.

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I have read and studied more than 300 pages of evidence including that of the full RAF board of inquiry, the Fatal Accident Inquiry, the Computer Age Report, the Tench report on Accident Investigation Procedures, to mention just some of the reports. In addition there have been numerous Parliamentary Questions, newspaper articles, TV programmes and meetings with officials of the MoD and Ministers. In that latter connection, I especially want to thank the Minister, the noble Baroness, Lady Symons of Vernham Dean, for her agreement to numerous meetings and for her unfailing patience in dealing, at times, with what may have seemed unusually persistent questions.

I can, of course, spell out for your Lordships many examples of why I believe that there must be some doubt about the verdict. In 1997, three years after the accident, the same type of Chinook helicopter was involved in an incredible near miss in the USA. In flight it turned upside down and hurtled towards the ground while the crew desperately struggled to right the aircraft. About 250 feet above the ground it righted itself and was landed safely. That provided the investigators with a perfect opportunity to find the cause of a near-fatal accident. The investigation found no definite cause, but a possible suspected hydraulic contamination.

That demonstrates clearly that the absence of proof of malfunction does not of itself prove that there could not be a malfunction, as there clearly was in that case. In relation to the Mull of Kintyre accident, it may help to give a brief description of what happened. The helicopter was flying at about 400 feet on its first sector towards the lighthouse on the Mull of Kintyre. The planned route was to make a left turn before reaching the mull. About one mile from the mull, the pilots changed the way point to head for a new direction, namely, Corran. The way point change can be described in layman's terms as an indicator of intended change of direction. The helicopter did not turn, but continued to fly directly at the mull from a height of 400 feet, climbing gently. Only three seconds before the crash did it attempt a rapid climb. To overfly the mull safely the helicopter should have been at a height of 2,500 feet and not the 400 feet at which it approached the mull, nor the 800 feet at which it crashed into the mull.

If the purpose of over-flying the mull was to achieve a more direct route to Inverness in order to save time, as has been suggested, that was operationally impossible because of icing limitations on the height at which the helicopter would need to fly.

In this case the RAF board of inquiry concluded that it would be incorrect to criticise the pilot, Flight Lieutenant Tapper, for human failings based on the evidence available. It also concluded that there were no human failings with respect to pilot Flight Lieutenant Cook. So one may be somewhat surprised that the reviewing officers overturned the board's finding and found both pilots guilty of gross negligence.

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I ask your Lordships to consider the evidence of just one of the reviewing officers, namely Group Captain P A Crawford, the Station Commander of RAF Odiham. I shall begin with his conclusion. He stated:

    "There is no indication of a major technical malfunction. Flight Lieutenant Tapper as captain of an aircraft in peace time had an overriding duty to ensure the safety of the aircraft, its crew and passengers. Whilst there may arguably be some mitigating circumstances I am regrettably drawn to the conclusion that he failed in his duty".

Bearing in mind that there must be "absolutely no doubt whatsoever", let us consider some of the evidence given in Group Captain Crawford's report. Regarding the attempted overflying of the mull, he states that the pilots would have had to use a speed and power combination that is unrecognisable for a Chinook; that such actions would go against all the crew's instincts and training; and would be the antithesis of the professionalism and careful planning that had gone before. He goes on to say that, after consulting other senior Chinook operators, he found the suggestion that the crew believed that they could overfly the mull incredible.

Regarding the suggestion by the board that the crew could have placed inordinate reliance on GPS accuracy, he found that concept as stretching credibility too far.

Regarding distraction, he accepts that that could have been a factor, but does not accept the implication that the decision-making process was complex and vulnerable to distraction. The crew had straightforward choices. I shall abbreviate what he said: when approaching high ground in poor weather the decision, which would have been ingrained in this crew, and indeed in all helicopter crews since basic training, would be to slow down, even stop, or turn away from high ground.

Regarding technical malfunctions, he stated that at this stage of the Chinook MK 2's service, spurious engine failure captions lasting, on average, seven to eight seconds, were an increasingly frequent occurrence. He goes on to say that they are now well understood, but at the time they were not. Had such an indication occurred, it would have caused the crew considerable concern, particularly as they were over the water with no obvious area for an emergency landing. Such a warning would have required an urgent and very careful check of engine instruments and FRCs. FRCs are flight reference cards which may be used in emergencies. At the time of the accident another witness, Squadron Leader David Thomas Morgan, was asked:

    "What unforeseen malfunctions have occurred on the Chinook HC2 since its introduction to service?"

He replied:

    "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 engine indications".

Finally, he was asked:

    "Were these malfunctions covered by drills in the Chinook HC2 Flight Reference Cards (FRC)?"

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He replied:

    "No, the Chinook HC2 FRC were based primarily on the Chinook D model which is not fitted with FADEC"--

in other words, an earlier model--

    "Drills relating to FADEC were based on the best information available on how the system would respond during certain malfunctions".

Finally, with regard to human failings, it is my understanding that gross negligence must come within that description, so it is of the utmost importance to pay regard to what Group Captain Crawford had to say on this subject. He stated:

    "in assessing human failings the evidence is insufficient to be specific".

I do not know whether your Lordships share my concern, but Group Captain Crawford's findings of gross negligence by the two pilots, for which there has to be "absolutely no doubt whatsoever", does not, in my opinion, fit the serious expressions of doubt set out in his report.

Therefore, I urge your Lordships and the Government to support the appointment of a Select Committee until such time as the MoD agrees to reopen the inquiry.

8.10 p.m.

Lord Ackner: My Lords, I have a short and simple submission; one which I believe to be wholly sound. The Air Marshals, in finding the deceased guilty of gross negligence--that is tantamount to a finding of manslaughter--without being able to present their defence, a point commented on by my noble and learned friend Lord Brightman at an earlier stage in the debates, acted without jurisdiction. Accordingly, their verdict must be set aside ex debito justiciae, which means, "because justice demands it". It is as simple as that.

The grounds upon which I base my submission can be shortly stated. First, boards of inquiry are held in private. Secondly, there is no right of representation on behalf of the accused or their personal representatives. In such circumstances, one would not expect a board of inquiry to have jurisdiction to attribute blame in reporting the causes of an accident. In fact, my noble and gallant friend Lord Craig of Radley said that the overriding concern of a board of inquiry is to discover what happened.

Such indeed is the present day position. However, at the time of the accident there was jurisdiction but it was heavily circumscribed by an onus of proof which exceeded that in a criminal case; namely, proof beyond reasonable doubt. The RAF Flight Safety Manual, AP3207, provided--and these are vital words--that only in cases where there is absolutely no doubt whatever should a deceased airman be found guilty of negligence.

On that test, there must therefore be absolute certainty. Only in such very limited circumstances is there jurisdiction to find negligence. Here is the very limited power which the Air Marshals had. Only where there was absolute certainty could they make that finding. However, there is no need for us to adopt the

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fascinating task of analysing those words because the Air Marshals never got near to satisfying the ordinary criminal onus of proof.

Perhaps I may quote from the report and the words of Air Vice-Marshal Day, which I recently came by through the courtesy of the noble Lord, Lord Jacobs. These are the vital words of his decision:

    "The Board and the 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".

I stress the following words:

    "In my judgement, none of the possible factors and scenarios are so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".

Clearly, it is being said 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; and, secondly, it deals in probabilities. It does not deal with reasonable doubt and it does not deal with the certainty which the words of the manual require.

Later in his observations the Air Marshal stated:

    "Therefore, while aware of the difficulty of attributing negligence to deceased aircrew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".

The phrase "while aware of the difficulty" is a clear understatement of the task that faced him. The difficulty of finding certainty is not a difficulty; I respectfully submit that it is an impossibility.

Towards the end of the observations, the Air Vice-Marshal stated:

    "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 high ground".

If it is "incomprehensible", then he does not understand how the accident happened. And if he does not understand how, he is not in a position to exercise the very limited jurisdiction which has been given to him. Those are my submissions.

It is interesting to note that when the matter first came before this House on 22nd May 1997 I raised the difficulty in the debate. I said:

    "Via the Library, I managed to achieve a summary of what was in the full report. I was told that I could not see the full report because it was not available to the public. I noted that the ... very heavy onus is not referred to at all. The summary states:

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