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Lord Chalfont: 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.

10.37 p.m.

Lord Glenarthur: 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.

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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 S61N, 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.

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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 times 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

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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

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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:


    "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".

I am sad to say that this tragic accident falls clearly within the ambit of those words.

10.50 p.m.

Baroness Warnock: 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.

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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.

10.57 p.m.

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:

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    "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".

The Select Committee continues in paragraph 175:


    "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:


    (a) the more detailed evidence of Mr Holbrook as to the weather conditions at sea, and the probability that the crew would have seen the land mass from some distance offshore;


    (b) the evidence of Mr Perks, Witness A and Squadron Leader Burke;


    (c) the deficiencies in the Boeing simulation with particular reference to the facts that . . . it did not take account of FADEC".

I should explain that FADEC stands for "full authority digital engine control system". It is a piece of apparatus of some significance. It consists of a number of components, the two major ones being a digital engine control unit, or DECU, and a hydromechanical assembly for each of the two engines. The purpose of FADEC is to control the fuel supply to maintain approximately 100 per cent rotor speed in all conditions and to match engine torque between the two engines.

Paragraph 175 goes on to state that deficiencies in the Boeing simulation include the fact that,


    "it used the postulated speed and ROC which have been shown to be incompatible".

It also states that the committee had regard for,


    "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".

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:


    "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".

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

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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 be 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.

11.9 p.m.

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:


    "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".

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

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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.

11.14 p.m.

Lord Lyell: 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

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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 crème de la crème. 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 crème de la crème 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 over-reaction, 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.

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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.

11.21 p.m.

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 this 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

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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.

11.26 p.m.

Lord Fitt: 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

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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.

11.30 p.m.

Lord Hooson: 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 be. 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,


    "incomprehensible why two trusted, experienced and skilled pilots should . . . have flown a serviceable aircraft into cloud covered high ground".

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.

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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.

11.36 p.m.

Lord Redesdale: 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.

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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.

11.42 p.m.

Earl Attlee: My Lords, I am extremely grateful to the noble and learned Lord, Lord Jauncey, and his extremely strong Select Committee for answering a

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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 be 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

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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:


    "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 the same page he continues:


    "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".

On page 9 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".

In his summing up of the current situation he states:


    "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".

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

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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.

11.53 p.m.

Lord Bach: 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

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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:


    "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".

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

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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'

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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:


    "(a) The omission to do something which, in the circumstances, a reasonable person would do or,


    (b) The doing of something which, in the circumstances, a reasonable person would not do or would do differently".

I cannot see why that definition was not referred to in the Select Committee's report.

The document continues:


    "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".

Then come these words:


    "In such circumstances, what might be trivial in other fields may, when associated with aircraft operations, amount to negligence which justifies severe criticism".

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

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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

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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:


    "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

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    acknowledging (although not necessarily agreeing) the basis on which the settlement was reached. The families of the deceased pilots have not admitted liability".

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 be 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.

12.15 a.m.

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

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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.

12.21 a.m.

Lord Chalfont: 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.

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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:


    "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".

He underlines the word "wrong" several times. At the end he asks this question:


    "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?"

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.

12.27 a.m.

On Question, Whether the amendment shall be agreed to?

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Their Lordships divided: Contents, 34; Not-Contents, 65.


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