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Lord Mayhew of Twysden: My Lords, along with so many of your Lordships, I have taken naturally enough a close interest in this tragedy and in the subsequent handling of the inquiries as I happened to be Secretary of State for Northern Ireland at that time and knew many of those who lost their lives and met the families of the two young flight lieutenants subsequently.

I congratulate the noble Lord, Lord Chalfont, on his ingenuity in finding this vehicle as a means of putting some ginger under the tail of the MoD

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because, after all, the report was delivered on 31st January. Some four-and-a-half or five months have passed and there is still no response from the Ministry of Defence. I sympathise warmly with the sentiments that the noble Lord, Lord Fitt, has just expressed. They come very much from the heart.

It is, however, possible to look at the issue before us tonight a little more clinically by reminding ourselves of the terms of reference of the Select Committee which were to consider,

"the justification for the finding of those reviewing the conclusions of the RAF Board of Inquiry that both pilots . . . were negligent".

The committee was not tasked by this House to find out what happened and what caused the crash. How could it have been so tasked? It would be quite beyond it. It was narrowly tasked in that way. It identified the question to be answered at paragraph 147 of its report on page 33. It states that,

"the question to be answered is whether there is absolutely no doubt whatsoever that they [the pilots] ought to have foreseen that their action would in all probability occasion the final event".

Those were the words of the RAF's own rules at that time—"absolutely no doubt whatsoever".

The committee concluded—let us not forget that it was headed by no mere tiro in this kind of matter; it was headed by the noble and learned Lord, Lord Jauncey of Tullichettle, a retired Lord of Appeal in Ordinary—at paragraph 174 that in the light of all the evidence before it, and having regard to that very high standard of proof,

"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".

It is perfectly true and only fair to acknowledge that the committee had before it some evidence which was not available for one reason or another to the air marshals. I ask the Minister when he replies to confirm that the evidence relied upon by the committee in coming to its conclusion was not limited to evidence that was freshly before it and was not available to the air marshals but that there was other evidence, which it identifies, which led it to the conclusion that it reached. If the Minister will confirm that, I should be grateful. If he cannot confirm it, it would be good to know why he cannot do so.

What is the purpose of commissioning further evidence or further information from Boeing? What are the particulars of what it is being asked to do? Why is it being asked to do that now? Can the Minister give an undertaking that when the response is ready it will be brought before this House in time for a debate to take place before we rise on whatever date in July that will be? Finally, can the Minister confirm that if the response fails to shake, and therefore to reject, the finding of the committee, the appropriate amendment to the records of the two young officers will be made within the MoD?

Lord Ackner: My Lords, Parliament is being mocked by the executive. The noise of feet being dragged, so as to cause unjustified delay, is becoming quite intolerable. The Motion of the noble Lord, Lord Chalfont, is a rare opportunity to draw this Parliament's attention to the position.

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To put the matter in its proper perspective perhaps I may, quite shortly, refer to some background facts although they are well known to your Lordships. As has been stated, on 2nd June 1994 RAF Chinook helicopter ZD576 crashed on the Mull of Kintyre. RAF rules in force at the time provided that the deceased air crew could be found negligent only where there was "absolutely no doubt whatsoever". I stress the words of emphasis—"absolutely" presupposes and emphasises that the doubt is unqualified and unrestricted. Doubt is not limited to cases of "reasonable doubt". The final word "whatsoever" makes clear that there can be no doubt of any kind; the onus requires certainty. There is clear justification for this. The board of inquiry takes place in private. The deceased's family is not entitled to representation. There is no appeal. No member of the board is legally qualified as in courts martial, whose function it is to ensure the legal validity of the decision.

During the debate of 5th March 2001—which was the first application for the appointment of the Select Committee—my noble and gallant friend—indeed my boss or the nearest I am likely to get one—Lord Craig of Radley said that the board of inquiry was not a court of justice. Its overriding concern was to discover what happened. Indeed, today a board of inquiry is not entitled to apportion blame in the case of a deceased pilot.

The RAF investigating board concluded that the most probable—I underline those words—cause of the accident was that the crew had selected an inappropriate rate of climb to overfly the Mull. However, the investigating board made no finding of negligence on the part of the pilots; nor did the two station commanders who reviewed its findings. Nevertheless, the two air marshals, to whom the investigating board's report was submitted, concluded that the pilots were guilty of gross negligence in that they failed to take appropriate action when approaching deteriorating weather near the Mull. That is tantamount to a finding of manslaughter.

Nearly two years ago your Lordships appointed a Select Committee to consider whether that finding was justified, and to complete its report by 31st January 2002. I refer to the decision, which, as your Lordships will recall—it has just been referred to—itself made clear that the,

"finding of negligence 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".

My noble friend Lord Chalfont sought leave to raise a PNQ against the executive, the Government, as to how it intended to respond to this report. With characteristic courtesy, the noble and learned Leader of the House wrote to my noble friend on 5th February 2002, explaining why he had refused to accept the PNQ; namely, that it would be quite inappropriate for the executive to make any kind of response until it had had time to read the report and to consider the recommendations. I in no way criticise that decision.

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The noble and learned Lord went on to give two virtual assurances: first, that the executive would not drag its feet in replying to the report; secondly, that once it had responded, there would then be an opportunity for the House to debate both the report and the executive's response, and that he, the noble and learned Leader of the House, would through the usual channels request an early date for the debate. That looked very hopeful.

In a Starred Question only last month, my noble friend Lord Chalfont asked the Government whether they expected to provide a response to the report before the Summer Recess. The Minister stated:

"The Government have said they intend to respond to the Select Committee's report before the six months allowed for response to such reports have elapsed. That remains its intention. Moreover, I hope that it will be possible to publish our reply and debate the issue in your Lordships' House before the Summer Recess".

We have now heard from my noble friend Lord Chalfont that the executive's response to the Select Committee's report is not likely to be available for debate in the House before the Summer Recess, taking full advantage of the six months without giving us any details as to why all that time is necessary.

In the debate on 30th April 2001, in which the second and successful application was made for the appointment of a Select Committee, the noble Baroness, Lady Young, said:

"... this is a constitutional matter. It is a duty of the House of Lords, as the legislature, to hold the executive to account".—[Official Report, 30/4/01; col. 1596.]

For the verdict to be considered valid, two requirements must be satisfied. They are, first, that the air marshals must have concluded that,

"there was absolutely no doubt whatsoever that the pilots were guilty of gross negligence"

and, secondly, that if—I underline that word—they did so conclude, there must be adequate material to support such a conclusion.

I deal with the first of those two requirements, which the executive has absolutely no chance of satisfying. It was my submission on 5th March and also on 30th April 2001 that the verdict reached by the air marshals was quite simply unlawful because it was made beyond their power. In forensic language, it was ultra vires and, for that reason, had to be set aside ex debito justiciae—"because justice so demands". It is not a question of discretion. The decision is a nullity. That is simply because the air marshals did not purport to say that it was one of those rare cases in which there was absolutely no doubt whatsoever that the deceased pilots were negligent. The nearest they got to that, albeit a long way off, was that Air Marshal Day said:

"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".

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I interpose to stress the following words:

"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".

In other words, it was being said that none of the factors or scenarios was of sufficient strength to provide a likely explanation. That has two consequences. First, it puts the onus on the deceased, which is wrong. Secondly, it deals with probabilities. It does not even deal with reasonable doubt, let alone certainties. That is the only material that the air marshal vouchsafed as his reason for exercising his power. His senior officer, Sir William Ralten, added nothing at all. However, Air Marshal Day to some extent gave the game away when he stated:

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

"Difficulty", the word that he uses, is a gross understatement of the task that faced him. What faced him was a 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:

"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".

I entirely agree that it is incomprehensible, which shows that it cannot have been a situation in which there was "absolutely no doubt whatsoever".

My submissions to your Lordships on 30th April and 5th March 2001 were never challenged. They were specifically supported by my noble and learned friend Lord Lloyd of Berwick, who emphasised that the first requirement raised a legal, rather than a factual, question and that it was a relatively short one. I had the privilege, as is often the case, of sitting next to my noble and learned friend, the former Lord Chief Justice, Lord Lane. He voted for the setting-up of this committee and I know that he accepted what I submitted.

The reference in the Motion to the Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 is a shot in our locker which I had hoped could have been used following—I emphasise the word "following"—the anticipated refusal by the executive to set aside its verdict. Perhaps one of the stimuli to the foot-dragging operation has been to ensure that the obligation to make the order arises before rather than after the executive's decision.

I end by saying that I hope that, in the course of this debate, the House will thoroughly deplore the executive's near contemptuous treatment of Parliament—a very depressing indication of worse to follow.

8.30 p.m.

Lord Craig of Radley: My Lords, I shall be very brief. I did not consider that tonight was a suitable occasion on which to go into detail on the findings of the board of inquiry or the Select Committee. I believe that the time to do that is when the report is available.

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However, it is worth reminding your Lordships that, in spite of all that has been said tonight, no fewer than, I believe, 10 Ministers of the Crown have stood at Dispatch Boxes in this and the other House and upheld the findings of the original board of inquiry. I believe that that, of its own, is sufficient to suggest that there must be more than one view on the matter. That is not surprising. Even noble and learned Lords of the very highest legal repute do not always see eye to eye. Therefore, I believe that it is right that we wait for the response of the Ministry of Defence. We shall then be in a better position to debate this subject.

However, any doubt about the intention of Parliament to proceed with the continuation order is wholly unacceptable. The services are under very great pressure, as all sides of the House have acknowledged on many, many occasions. However well-intentioned the protagonists for the amendment of the noble Lord, Lord Chalfont, may be, I abhor any attempt to detract from the wholehearted support that this House should give to the Armed Forces.

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