§ 3.36 p.m.
§ EARL FORTESCUEMy Lords, I beg to ask His Majesty's Government the Question standing on the Order Paper in my name—namely, whether they have any statement to make with regard to the McDonald Report and the action of the Minister of Civil Aviation with regard to that Report.
THE MINISTER OF CIVIL AVIATION (LORD PAKENHAM)My Lords. I am obliged to the noble Earl and to the noble Viscount, Lord Swinton, for raising this matter because, apart from anything else, it gives me the opportunity to express my regret for the method I adopted in publishing my dissent from this Report. My object was to place on record publicly at the earliest possible moment my dissent from certain conclusions of the Report in what I thought would be the least controversial manner. I can see now that I was wrong, and that the proper course was to express my dissent and make my explanation to Parliament. I hope that the House will accept a simple but sincere expression of regret that I did not do so in the first instance. A similar statement is being made in another place by the Secretary of State for Air, but I should make it plain that it was I, as Minister of Civil Aviation, who set up the court and received its findings, and on whom, therefore, full responsibility must rest throughout.
1126 If the House will allow me, I propose to deal first with my relationship to the court, and with my right to dissent from its conclusions, and then with the grounds of my dissent. I cannot help thinking that much of the misunderstanding which has arisen—I do not say in this House, but in the public mind—is the result of an impression that this tribunal of inquiry, being called a count, was one of which the findings were binding on the parties, including myself and everybody else. This is by no means the case. My responsibility for accident investigation is discharged in accordance with the regulations made under Section 12 of the Air Navigation Act of 1920. Under these regulations, the Minister has power to appoint a competent person, described in the regulations as "the court," sitting with assessors, to carry out a public investigation. A public inquiry is a special form of machinery set up to assist the Minister to carry out certain of his ministerial responsibilities. The appointment of a court at his discretion does not divest him of his final responsibility as a Minister and to Parliament.
The normal procedure in any such inquiry is first of all to examine the evidence and the witnesses, and to ascertain the facts. From these facts, conclusions may be drawn as to the cause of the accident, and the regulations expressly provide that the cowl is entitled to make such recommendations as it thinks fit, with a view to the preservation of life and the avoidance of similar accidents in the future. It also has power to recommend the cancellation, suspension or endorsement of licences or certificates. The Report of the court is clearly intended—I hope I may be allowed to emphasise this —to be advisory. As to the Report itself, there can rarely be any dispute as to the facts found from the evidence, but in view of the complexities of aviation there is often room for a difference of opinion on the conclusions to be drawn from the facts and on the recommendations. I cannot, therefore, regard myself as being bound in advance in every case to accept the conclusions and recommendations of such an inquiry.
The Report, when received, is carefully examined in my Ministry with the object of advising the Minister generally on the Report, and as to the action, whether disciplinary or remedial, which should be 1127 taken. If any other public Department is involved—for example, in this case a department of the Air Ministry in regard to meteorological services—that Department is, of course, consulted. All reports of public inquiries are published, and where there are compelling reasons which lead the Minister to differ from the findings or recommendations of the court, it is equally his right and, indeed, his duty, to satisfy the public interest by a suitable measure of public explanation.
In the present case, one of the conclusions at which the court had arrived was that a contributory cause of the disaster was a failure on the part of individual members of the ground staff concerned properly to discharge their responsibilities. It was my duty to consider this finding and, if I agreed that it was well-founded, to take energetic steps, in conjunction if necessary with the Secretary of State for Air, to see that nothing of the sort should occur again. In the event, for reasons which seemed to me to be compelling and which I will explain in a moment, I came, after most anxious consideration—some people think I took too long—to the conclusion that no failure on the part of the ground staffs had occurred which contributed or could have contributed in any way to this tragic accident. That being so, I deemed it my duty to say so publicly, not because I am in the least concerned to defend anyone who has been at fault, or to cover up anything which should be known, but because the morale and efficiency of the ground services, on which safety so largely depends, demand that any allegation of failure should be followed by disciplinary action and reform, if it is justified, or by rebuttal, if it is not.
I should now, if the House will allow me, explain why I find it impossible to accept certain of the conclusions in paragraph 173 of the Report. I quote a sentence from that paragraph which deals with a number of contributory causes:
The failure of the meteorological staff at Prestwick to enforce obedience of the order that reports of weather deterioration should be given in plain language to the air traffic control officer and the latter's failure"—that, of course, refers to the air traffic control officer's alleged failure—to pass on the information which he had received in code resulted in the omission of the words 'deterioration' and 'deteriorating' from verbal radio messages to the aircraft.1128 This sentence is contained in a paragraph which gives a list of contributory causes. It is this sentence which led me to issue the dissenting note that we are discussing to-day.If the House will bear with me for a few moments, for I know that this part is not easy to follow, I would like to describe briefly the duties of those on the aerodrorte concerned with advising and assisting an aircraft in landing. There is, first, the officer of the meteorological service, who prepares the weather reports; secondly, there is the traffic control officer in the control tower, who communicates with the aircraft by radio-telephone and controls its movements; thirdly, there is a representative of the air line—in this case K.L.M.—who is in the control tower with the control officer to watch the company's interests during the approach and landing. Finally, there is the controller, who is responsible for the ground-controlled approach, who is located in a caravan on the aerodrome and who is also in communication by radio-telephone with the aircraft. The duty of the officer of the meteorological service is to pass information to the broadcasting unit. which is outside the aerodrome, for broadcasting at half-hourly intervals, and also to the control officer in the control tower. This part is immensely important. At the time of the accident it was the approved procedure for the meteorological officer to prepare two forms. The first provided information under various heads, both in code and in plain language, in two adjoining columns.
The column in code was supplied for wireless telegraphy transmission at long range, and at short range in the case of aircraft not fitted with radio-telephone. The column in plain language was originally intended for use in radiotelephone communications from the control tower to aircraft as they approached the vicinity of the airport and came within range of the radio-telephone system. For short-range radio-telephony use, however, this first form—and this is one of the key sentences—had at the time of the accident been superseded at Prestwick, London and elsewhere by a second form, which was in fact a separate short form in plain language under fewer heads, giving the information recommended internationally. This shortened form, on which 1129 I ask your Lordships to focus your attention, was approved by the Minister of Civil Aviation for normal use by air traffic control officers in the tower, and was in fact the operative document on which the air traffic control officer at Prestwick acted in carrying out his instructions. There was no instruction, and there is no international requirement, that the word "deteriorating" should be included in this shortened form. All the information on this form was passed to the aircraft by radio-telephone.
§ VISCOUNT SIMONMy Lords, as I have been looking into this, I should like to ask the noble Lord a question, to be clear as to what has been said. Does the short form provide for the information to be sent out in plain language?
LORD PAKENHAMYes. There was in fact a technical breach of the regulations—I am hiding nothing; I am in the hands of the House—in that under the strict letter of the regulations the meteorological observer should have completed the plain language column in the first form. But as this first form, as I have explained, was superseded for radiotelephone purposes by the shorter simplified form, this technical breach could have no significance. I hope your Lordships will ponder that very carefully, as I am sure you will.
Quite apart, however, from the question whether members of the staff acted in accordance with their instructions, I am unable to agree that the omission of the word "deteriorating" from the radio-telephone conversation had any bearing on the accident. The Report contends—and I repeat this because your Lordships may not all have had time to read the Report, though no doubt many of your Lordships have studied it with the greatest care—that if in addition to receiving this word at 23.06 hours (the House will allow me to use that terminology) on the wireless broadcast the pilot had also received it on the radio-telephone two minutes later, at 23.08 hours, it would have completely changed his action and he would in fact have diverted to another aerodrome. I am afraid that I cannot possibly accept that view. From the time of his briefing at Schipol until the half-hourly wireless broadcast at 23.06 hours the meteorological information made available to the 1130 aircraft showed steadily worsening conditions; and the last broadcast at 23.06 hours included the word "deteriorating" as an indication that conditions had become worse during the period of observation. Even if the word had been repeated in the radio-telephone conversation two minutes later, which was not required under the approved procedure, it would have added nothing to the continuous weather picture already passed to the aircraft, from which the substantial deterioration of cloud conditions was self-evident. The omission of this word from the radio-telephone message at 23.08 hours—I ask the House to note these times—could not therefore have had a bearing on the accident which occurred twenty-four minutes later.
It may be asked what of the period between 23.08 hours and the occurrence of the accident at 23.32 hours. It will be seen from paragraph 117 of the Report that until 23.26 hours, six minutes before the accident, the aircraft was engaged on its ground-controlled approach descent, commonly known as the "talking down" system, which is, of course, conducted by radio-telephone No further request for information as to cloud conditions was received during this period, but the descent through cloud to conditions of visibility afforded the crew an opportunity of judging the weather for themselves. The court, however, does not suggest that there was any dereliction of duty by any individual during this period of 24 minutes before the accident. I lay stress on that. It does, however, mention in the first sentence of the conclusion of paragraph 173 the absence of a uniform system regulating the conditions in which intermediate deterioration weather reports are sent out. In fact, at the time of the accident a uniform system had been agreed internationally and recommended to individual countries for adoption. This system was in operation at Prestwick and did not provide for the issue of intermediate reports in the conditions prevailing at the time. Indeed, in paragraph 108 of the Report, the court accepted the position that there was no such deterioration as required the issue of an intermediate report. There have, however, been developments since that time in the system of weather reporting, which is under constant review, as it should be, and on which full information 1131 can be made available at any time to the House. In particular I would mention that new and improved arrangements have just been made for sending intermediate weather reports to aircraft.
May I sum up, and in doing so reiterate the deep sympathy I expressed at the time to all on whom this tragic blow fell? As regards the system, we were carrying out the internationally agreed procedure. As regards the individual officers, I came to the conclusion, which I firmly hold to-day, that the two or more officers concerned had in no way failed in their duty and it was therefore wrong that they should have cast upon them in any public document any measure of responsibility for the loss of life involved in the disaster.
§ VISCOUNT SIMONMy Lords, may I ask one question before we proceed? I am not offering to speak now. The noble Lord has told us that there was an observation of the weather at 23.08 hours and the accident occurred 24 minutes later. What he has not told us is this: Was there no observation of the weather after 23.08 hours? Did not that observation show that the weather had become worse? And was there any communication of that in plain language to the aeroplane or to the control officer?
LORD PAKENHAMThe process of observation was continuous, but, as the Report agrees, there was no reason for a special or intermediate report during that period.
§ VISCOUNT SIMONI did not ask that question. I did not ask whether it was necessary or not, but whether it is within the noble Lord's knowledge that there was a weather observation long after the time he mentions, 23.08 hours, on which evidence was given, and whether or not that observation, which shows a worsening of conditions, was communicated in plain language either to the control officer or to the aircraft. That is the point.
LORD PAKENHAMMy Lords, there is no suggestion in the Report—therefore, I have no need to go further than the Report in that connection—that there was any failure by any individual after 23.08 hours.
§ VISCOUNT SIMONHave you not read the evidence?
LORD PAKENHAMI speak with the greatest diffidence, because the noble Viscount is so much my senior, but if he asks me the question, "Have you not read the evidence?" the answer is, "Yes." I am willing to continue in your Lordships' hands all day, but I am rather surprised at the noble Viscount calling out an interjection of that kind.
§ 3.51 p.m.
§ VISCOUNT SWINTONMy Lords, with respect, I must say that in a matter of such seriousness, when now for the first time any sort of explanation is given by the Minister for his extraordinary action, it seems to me a little surprising that he should resent a perfectly proper and very pertinent question put by my noble friend Lord Simon to clarify a vital point.
The noble Lord who has just addressed us always speaks in this House with eloquence, usually with clarity and often with conviction. I have listened to what he has had to say to us to-day, and I am bound to say that on this occasion I find his speech as difficult to understand as I find his action impossible to justify. The issues raised by this unhappy affair are so important, nationally and internationally, that I must recapitulate briefly the facts as disclosed in the Report and try to put them in their true perspective. On October 20, 1948, a Dutch aircraft, piloted by one of the most experienced pilots in the world, had a fatal accident in which forty people were killed. That accident occurred at an international airport for which the Minister is responsible. The Minister, quite rightly, directed a judicial inquiry to be held in public by an eminent member of the Scottish Bar, selected from the Lord Chancellor's panel and assisted by a highly expert assessor. All the available evidence was produced to the court of inquiry. All parties, including the Minister, the meteorological staff and the ground staff, were represented by counsel at that inquiry. Any relevant facts would certainly have been—and I am sure were —submitted to this highly qualified Commissioner by counsel appearing on behalf of the Minister and the staffs concerned. It seems to me, if I may respectfully say so, that much of what the Minister has said to us to-day would have been more pertinent had it been addressed by his counsel to the lawyer who was conducting the inquiry. I think we must assume— 1133 indeed, it has never been challenged—that every relevant fact was brought by counsel to the notice of the Commissioner. The inquiry lasted for ten days, and on June 29, 1949, the Report was presented, signed by the investigator and the assessor.
Here I think it will be convenient if I state the procedure which the Minister has himself laid down in regard to such investigations, and particularly in view of what—as I hope to show later—is the very strange view which the Minister has expressed of the rôle, the function and the authority of these courts of inquiry. Your Lordships will remember that a Committee was appointed (I think it is called the Newton Committee) by the present Minister's predecessor, the noble Lord, Lord Nathan, to report on accident investigation procedure. The Committee recommended that investigations should be entirely independent of the Minister. The noble Lord, Lord Pakenham, who succeeded Lord Nathan, accepted part and rejected part of those recommendations. Your Lordships will find the Minister's decisions on this Report set out in Command Paper 7564. It is relevant to consider Paragraph 89 of that Report, which is headed: "Position of the Minister." It reads as follows:
Under our proposals, at a Commissioner's Inquiry"—that is what I am calling a court of investigation—the Minister will be in the same position as any other interested party, save that we think it should be specifically laid down that he shall he deemed to be a directly interested party and entitled to appear as such at every Commissioner's Inquiry.I cannot find that the Minister anywhere dissented from that view, and quite rightly so. Then in sub-paragraphs (xiii) and (xv) of Paragraph 15 of the Report, the Minister lays down the procedure which should be followed. This is signed "Pakenham." It says:Court Investigations"—the Minister says there is misunderstanding because it is called a "court"; that is what the Minister calls it in the document he presented to Parliament.
LORD PAKENHAMI am sorry to interrupt the noble Viscount, but I said specifically in my remarks earlier that it was a court.
§ VISCOUNT SWINTONThen I am not sure where the confusion has arisen. That is what we have all called it. The Report says:
(xiii) These will be conducted by a President appointed from a panel of persons with legal qualifications nominated by the Lord Chancellor. Where appropriate, the President will have the assistance of one or more assessors appointed ad hoc by the Minister after consultation with the President.(xiv)…The Attorney General will, if he desires, appear in order to represent the public interest; interested parties may be represented, cross-examine witnesses and call evidence themselves.…(xv) Subject to (a) and (b) below "—that is, security grounds and the necessary consent of a foreign. Government, where a foreign aircraft is concerned—Reports of Court Investigations will invariably be published. These Reports"—and also Inspector's Reports—will be published as soon as possible after presentation to the Minister.That course was followed. As I say, the court was set up and held its inquiry, and made its Report on July 7, 1949. For nearly five months there was no publication of this Report, which under the Minister's own directions was to be published as soon as possible, and, of course, no communication with the Commissioner who held the inquiry. As we now know from the Minister's earlier statement and his fuller statement to the House to-day, the Report contained the findings of fact to which he took exception. I will come in a moment to the action which the Minister took, but I must deal briefly with the findings as set out in the Report of the court, where the Minister was represented by counsel and which had all the relevant evidence before it. There can be no possible question—whatever deduction the noble Lord seeks to draw—that there was ample evidence to justify the findings. More than that, counsel for the Minister expressly drew the attention of the learned King's Counsel conducting the inquiry to the evidence which he considered was relevant and to which he thought the court should have its attention drawn.The material evidence is not in dispute. The orders, as I have always understood, lay down that deterioration of weather, cloud and visibility shall be stated in plain language; and the form contained a space for that. I submit that that is a very sound rule, because it ensures that 1135 news of deterioration is passed on in plain language in any radio-telephone conversations with the aircraft. The Report finds that information of material importance to the captain of an aircraft was witheld from him. I am sorry to deal with this at some length, but it is so important that I think your Lordships should have before you the findings of the court on this matter: they are set out in paragraph 102 and following paragraphs, and are as follows:
As already mentioned there was no reference in any of the R/T conversations to the fact that visibility and cloud were deteriorating. The absence of this information was due to the failure of the meteorological observer to include this item in either of the reports which he sent to the Flying Control Officer (Tower Control) at or just after 23.00 hours. In his report on Form 2309 this information was given in code but the space on the form for completion in plain language was not used. The Deputy Director of the Meteorological Office stated that no instruction was ever issued by his office that the state of the weather should not be given in plain language. The Senior Meteorological Officer at Prestwick could give no explanation why the instructions on Form 2309 had not been carried out. He suggested that there must have been some arrangement made between Approach Control and the Meteorological Office (Prestwick) before he went to Prestwick, whereby such information was not given in plain language. There was no evidence of any such arrangement ever having been made. The officer who made the suggestion had held his position at Prestwick for a considerable time and was apparently unaware of this practice until he was giving evidence before the Court. He agreed that such information was of material importance to the Captain of an aircraft, and that it was withheld from the Captain when he was in R/T contact with the Airport. The practice was in existence during the whole of the period when the 18-year-old observer was at Prestwick, and no responsibility can fairly be placed upon him for following the usual routine.That shows how thorough and fair the court were. Some criticism has been made that the observer was a young lad of eighteen. He was directly exonerated by the Commission: he was following the usual routine. The Report goes on:The Court is of opinion that there was a grave lack of supervision in the Meteorological Office at Prestwick.The final responsibility for communicating weather information to the aircraft, however, rested with the Flying Control Office. The officer on duty in the Control Tower stated in evidence that he had means at hand of decoding items 14 and 15 on Form 2309"—1136 everything had been in code, and the space for the plain language not filled up—but did not pass on the deterioration messages to the aircraft because it was not the normal procedure to do so.He referred to a Notice to Airmen of May 27, 1948, which lays down that Captains of aircraft will obtain weather information as much as possible from the routine broadcasts and that their requests for weather from Approach Control will be restricted to the minimum consistent with safety in order to avoid congestion of the Approach Control frequency. He said that the weather normally passed to aircraft on R/T had been brief plain language messages to facilitate landing and take-off.His evidence in cross-examination continued:'Is not one of the elements of advising the pilots of weather conditions to inform him whether the conditions are in fact static, improving or getting worse?—That is rather a difficult question to answer just now.Q. Could you do your best?—A. Owing to the frequency of the reports which we receive and pass to aircraft we give a pretty good picture of the conditions at the time.Q. Would you mind answering my question (Question repeated)?—A. It is.Q. And does not the information which you have under your hand tell you whether the conditions are static, improving or getting worse?—A. On the plain language messages on that particular occasion, to the best of my knowledge, they did not mention the word deteriorating.'That is because there was no plain language; it was all in code.'Q. On Form 2309, which is the official message form, they did, on the contrary, inform you that both ceiling and visibility were deteriorating?—A. They did on this form.Q. That was an element of some importance, was it not?—A. Yes.Q. May I ask you to … answer a plain question. As a pilot would you not want to know if the ceiling was getting lower and the visibility getting worse?—A. Approaching an airfield, yes.Q. And you did not pass on that information?—A. I did not.Q. Acting upon departmental instructions?—A. Acting upon procedure which we have always adopted and have always used.Q. Approved by the department?—A. Yes.''Q. Can you refer me to any document which says you are not to inform an aircraft coming in on a dark moonless night that both visibility and ceiling are deteriorating?—A. No.Q. Is that because there is none such?—A. Presumably so.'Then the Report goes on:While giving due value to the importance of avoiding congestion on the approach control frequency, the Court is of opinion that the 1137 practice of omitting references to deterioration of weather in R/T messages to aircraft approaching to land is to be condemned.I will read only one other passage in fairness to the Minister. Paragraph 114 says:The practice of omitting plain language messages of weather deterioration on Form 2309 was directly contrary to the instructions contained on the form. The practice of approach control to omit deterioration messages may have had its origin in the absence of plain language information on Form 2309, but whether that be the case or not the practice is inexcusable, and was undoubtedly one of the contributory factors leading to the disaster.Your Lordships will see that on this undisputed evidence the court expressed the opinion that there was a grave lack of supervision in the meteorological office at Prestwick, and that the practice of omitting references to deterioration of weather in radio-telephone messages to aircraft approaching to land is to be condemned. Frankly, I do not see how the tribunal could have done anything else on the evidence.Now I come to the action of the Minister. There was, as I say, no communication with the Commissioner. I should like to be quite clear about this, because the Under-Secretary in the House of Commons, when specifically asked about that matter, said that there was no fresh evidence other than that which was before the court of inquiry. Apparently the Minister sat with the Secretary of State for Air, brought in at some stage, as a court of appeal on findings of fact. As I say, there was no new evidence. I presume he consulted his officials (indeed he has said so) who indirectly are interested parties, in the same sense that the Minister himself is an interested party, because it is the administration and the action of his Department which was in question and which is being challenged here.
Then, nearly five months after the receipt of the Report, the Minister issued the following extraordinary communique through the Press:
…At the same time, he thought it fair to the staff of the Ground Services to say that they have given full information and cooperation to the aircraft in accordance with normal practice in bad weather including a satisfactory descent to visual conditions by means of the GCA system. The Minister considered that the decision of the pilot to circuit Prestwick at a height lower than the obstructions in the vicinity could not have been influenced by the action or lack of action of 1138 the staff of the air traffic control or meteorological services, and that it was not the case that any individual member of that staff bore a responsibility for the accident.The Secretary of State for Air has been consulted and has concurred in these views.Before that communication was issued the Minister wrote an even stranger letter to the Commissioner, Mr. McDonald. This was the letter:Since writing to you on July 22, 1949, expressing my appreciation of your work as President of the Court of Inquiry into the accident last October, at Prestwick, of the K.L.M. Constellation, I have been carefully considering, in consultation with the Secretary of State for Air, the findings of the Court. I feel that I must tell you that both the Secretary of State and I were seriously worried by the implication contained in the Report that members of the air traffic control staff or meteorological services indirectly bore some measure of responsibility for the accident.We have, after much careful thought, come to the conclusion that the decision of the pilot to circuit Prestwick at a height lower than the obstruction in the vicinity could not have been influenced by the action, or lack of action, of the staff of the air traffic control or meteorological services. Since members of these staffs, being civil servants, are not in a position to defend themselves publicly in any way, both the Secretary of State and myself feel it to be our duty to publish a Press statement to the effect simultaneously with the publication of your Report. I attach for your information a copy of the proposed Statement.Then, even more extraordinary:You would not, I am sure, wish me to go into the reasons which have led us to this conclusion. I can assure you that it has been reached, as I have said, after much careful thought and, in the circumstances, I feel it is only right for me to make this public statement in order to protect the civil servants concerned.May I say once again how grateful I am to you for having undertaken in such a unbiased and competent way this extremely complicated and technical matter. I am most grateful to you and for that reason am all the more sorry that I should have to point out publicly that I am unable to accept this one aspect of your otherwise admirable Report.Before I come to Mr. McDonald's reply, I will myself offer the following comments on these two documents. The first is this. The Commissioner was given no opportunity to comment or to reply before the Press communique was issued. He was not intended to have any such opportunity. The communication was, in the language with which we are acquainted in the Services, "For information only." My next comment is this. The Minister, who had not had the advantage 1139 of hearing the witnesses—always an important consideration—rejects the finding of the Commissioner on a vital matter. My third comment is that there was no fresh evidence. The evidence before the Minister was exactly the same as the evidence before the court. The difference was that the Commissioner, a highly-trained lawyer sitting with an expert assessor, heard the witnesses and the Minister did not. My fourth comment is that the finding which the Ministers rejected was the one which reflects adversely on their own staffs. My fifth comment is that the Minister says that the civil servants had no opportunity to defend themselves publicly in any way. But they were represented by counsel at this public inquiry and gave evidence on oath. And then, most extraordinary of all, in the Minister's letter come the words:You would not wish me to go into the reasons which have led us to this conclusion.Nothing but the strongest and most overwhelming reasons could possibly justify or excuse the Minister's action. Then there came the superfluous and, I must say, rather insulting compliment to this eminent lawyer on his unbiased conduct of the inquiry. It is rather as if one were to compliment a respected matron on her virtue; that would indeed be superfluous and, I should have thought, in rather doubtful taste.This letter elicited a dignified and forceful reply from the Commissioner. After repudiating the back-handed compliment on the absence of bias, he continued as follows:
It would be presumptuous for me to question the propriety of your proposed statement to the Press, which has been prompted, as you say, by the consideration that the members of your staff, and the Air Ministry, being civil servants, are 'not in a position to defend themselves publicly in any way,' but I feel bound to say that they had every opportunity of doing so at the inquiry, and indeed had the inestimable advantage which was denied to the captain and members of the crew of the aircraft, of giving evidence in person.With regard to the third paragraph of your letter, I should have thought that there was every reason why you should state the grounds upon which you and the Secretary of State for Air differ from the findings of the court; if the dissent is based upon evidence then I am wholly unable to understand why it was not tendered at the public inquiry. As neither you nor the Secretary of State for Air were present in the aircraft at the time of the pilot's decision there can be no other relevant basis in fact 1140 for such an attitude which, if I may respectfully say so, renders the whole procedure of impartial public inquiry nugatory, if not indeed indecently farcical. It is plain to me that the purpose of this statement is to impute, without evidence, sole responsibility to a dead man, a pilot of unblemished record and unrivalled experience. With the policy or propriety of such action I, of course, have no concern. I can only express my emphatic personal dissent. I would venture further to observe that if your view is based on evidence which is not narrated, or worse still does not exist, it may be suggested that you have approached the problem with bias and partiality, which would be unfortunate, particularly since the Inquiry was held upon an Order pronounced by you.That is the story, my Lords, and those are the facts. We are dealing with a particular case, and in this case the facts are so clear and the Minister's conduct seems to me, and I think probably to most of your Lordships, so indefensible that it is unnecessary to formulate a hard and fast rule which would prescribe the rights and duties of a Minister in every conceivable eventuality. But I think it right to add this, and I do not think that any experienced and responsible Minister will dissent. It is true that there is no law governing the powers or duties of a Minister as regards the report of a quasi-judicial inquiry of this kind. But that makes it all the more important that the practice should be beyond reproach.A Report may contain two different sorts of findings. First of all, it may contain findings of fact on the evidence given at the inquiry. Secondly, it may contain recommendations for ministerial action. As regards the second—recommendations for ministerial action—the responsibility is clearly with the Minister. As regards the first—findings of fact—whatever may be the Minister's theoretical powers, it is to me inconceivable that a Minister should reject the findings of fact of a highly qualified tribunal unless he were able to satisfy Parliament beyond all doubt that there was no proper evidence to support those findings. It is almost inconceivable that with a highly qualified lawyer sitting with an expert assessor, such a situation could arise. Certainly, no such situation arises here.
Let me take a parallel case that may be familiar to all your Lordships. After the "Titanic" disaster, Mr. Justice Bigham, sitting with assessors, was appointed as a court of inquiry to report upon it. It was a quasi-judicial court 1141 of inquiry. A report was made to the President of the Board of Trade. In that case, the court of inquiry did two things. They found certain facts, including the fact that the vessel had been going at too fast a speed in the presence of ice. They also made certain recommendations, one of which was: "Boats for all." There is no possible question that the decision whether there should be a new regulation of "Boats for all" was a decision for the President of the Board of Trade. I have forgotten whether that regulation was actually ever made, but by the common consent of all practical people, every kind of expert being brought in, the captains and seamen and so forth, it was finally decided that much the better way of ensuring the safety of passengers was not to have boats for all but to have buoyant appliances for all—that is, rafts as well as boats. Regulations were made, and I think in an international conference in my time at the Board of Trade that became the universal practice. That was a perfectly proper case for the exercise of ministerial discretion. But on the finding of fact, supposing the vessel had been not the property of the White Star Company but of the Government, it is inconceivable to me that the President of the Board of Trade would ever have dreamt of overriding or rejecting the findings of fact of that tribunal.
In passing judgment in this matter, we are concerned not only with the Minister's personal position but with much graver and more farreaching matters. As to the Minister's own position, on the advice or under the direction of higher authority he has now not, indeed, retracted his previous statement but has retracted the method in which it was made. I must say that I think most of the House were greatly surprised at the form the Minister's statement took to-day. But much more is involved here than the Minister's own position. If a Minister can in practice cavalierly override or overrule the findings of fact of a highly competent quasi-judicial tribunal in circumstances which, in Mr. McDonald's own words,
render the whole procedure nugatory, if not indeed indecently farcical.then no lawyer of repute will in future he willing to undertake the task.1142 But the mischief does not end there. This whole matter raises issues of national and international concern. The noble Lord, Lord Nathan, once observed that in civil aviation safety was the paramount consideration. I think he said:
Safety first, safety second and safety third.I must say that for the first time I found myself in complete agreement with the noble Lord. Not only our own air services but the airlines of foreign countries, the pilots who fly the planes and the passengers who travel in them, all rely and must rely upon the efficiency of the meteorological and control staffs at our great airports, They must have that confidence. Moreover, if fatal accidents occur—and fatal accidents will occur in the air, however efficient the services and the system—then everyone at home and overseas must have complete confidence in the thoroughness and independence of the investigations which follow. The Minister's unfortunate action has shaken this essential confidence. That confidence must be restored, and I am sure it can be. Our meteorological service is second to none in the world. Our technical knowledge and experience in flying control and all its aids are unrivalled. All that knowledge and experience can and must be effectively applied. Moreover, the investigations in this case conducted by Mr. McDonald, an eminent lawyer, and Captain Frost, have shown how thorough and impartial these investigations are, in the highest tradition of British courts of justice, which command the confidence of the whole world. It is the Minister's action which is so alarming and indeed—I must say it—so shocking.In these circumstances, I am bound to add this, and particularly after the speech the Minister has made to-day. I say this with regret, but I should be doing less than my duty if I did not say it. The noble Lord has rendered valuable service to the Government in this House, and we all respect him as a formidable and frank adversary in debate. But, after what he has done and said, and particularly after the statement he has made to-day on reconsideration, I do not think that the confidence which is so essential in this country and in foreign countries using our airports will be restored—as it must and should be—if the Minister continues to hold his present office. I go 1143 further. This country is a focal point of world air traffic, and in the interests of all who travel by air we must ensure that what has happened here cannot happen again. I believe that the only way of doing that and restoring complete confidence is to make the investigations of fatal civil accidents wholly independent of the Minister. That was the basic recommendation by the Committee which Lord Nathan set up. It is not necessary to subscribe the details of their recommendations. For my part, I should not do so. But I am sure that the principle is sound, and I trust that the Government will accept that principle and will be ready to establish an independent judicial tribunal to conduct the investigation of all fatal flying accidents in civil aviation. If that is done, out of evil will come good.
§ 4.30 p.m.
THE MARQUESS OF READINGMy Lords, all of your Lordships who either take part in or listen to this debate will, I think, feel a sense of regret that it is necessary in any degree to participate in the arraignment of a Minister. At the same time public duty outweighs private friendship, although one may hope that possibly the converse is also true, and that private friendship will, in the long run, outlive public censure. It would be wrong of this House not to inquire closely into what has taken place and to pronounce judgment upon it.
I confess that my first investigation into these matters led me to think that the Minister had brought this entire trouble upon his own head, and nothing that I have subsequently read and, I regret to say, little that I have heard from the Minister himself this afternoon, leads me to go back upon my initial impression. I had hoped, as I think many of us had, that when the Minister came to make the statement for which we were waiting it would have been in its terms a much more ample apology than anything he has thought fit to offer us to-day. He confined himself, as I understand his statement, to an expression of regret that the method which he had adopted in making known his action was to publish it in the form of a communiqué to the Press rather than to communicate it in the first instance to Parliament. That statement seems to me to go but a very little way towards retrieving the ground 1144 which the noble Lord has lost. There are, in my view, three questions for your Lordships to consider in this matter: first, had the Minister the power to do what he did? Second, if he had that power was he right to exercise it in the present case? Third, even if he were right to exercise it, did he exercise it in the right way? It may be worth while devoting a little time to consideration of those three points.
As regards the first, I would certainly not contend that the finding of a court of this kind is in the nature of a judicial decision, in the sense that it is either unconditionally or automatically binding upon the Minister. But when he proceeds, as he did in the course of his statement to-day, to degrade the functions of that body to a purely advisory level, then there I part company with him. It seems to me that the Minister is perhaps not in a very easy position in these matters: he is an interested party. It may not be without interest to refer back for a moment to a document to which many of us look up and have looked up for a good many years —the Donoughmore Report on Minister's Powers, and to quote a short passage from that document, where it says:
We think that in any case in which the Minister's Department would naturally approach the issue to be determined with a desire that the decision should go one way rather than another the Minister should be regarded as having an interest in the cause. The application of the principle which we have just enunciated to the quasi-judicial decision, is not so easy as the judicial decision, since a quasi-judicial decision ultimately turns upon administrative policy for which an executive Minister would normally be responsible. We think, however, that before Parliament entrusts a Minister with the power and duty of giving quasi-judicial decisions as part of a legislative scheme. Parliament ought to consider whether the nature of his interest as Minister in the carrying out of the functions to be entrusted to him by the Statute may be such as to disqualify him from acting with the requisite impartiality.My Lords, I take the view that this tribunal was at least a quasi-judicial body, and from that conclusion, if it he right, I think the following principle ensues. Leaving out of account any such administrative action as it may fall to the Minister to take upon a Report, I should have thought (and I believe I am not in any way differing from the noble Viscount who has spoken first in this matter), that a Minister was entitled to differ from a 1145 finding of fact by a quasi-judicial tribunal only if he could show either that that finding was unsupported by evidence or that it was so manifestly against the weight of evidence that it ought to be disregarded. That is what I conceive to be the position. If the Minister came to the conclusion that in this case that was what had happened, I would point out that there is in the Newton Report a recommendation that, though there can in certain circumstances be a rehearing of an inquiry, the Board should have power to order a fresh inquiry by the same or another Commission if in the Board's opinion the public interest so requires. Presumably it would have been equally possible to reconvene the tribunal concerned in this case, and to submit to it further considerations. Whether it was possible or not, nothing of that kind was done; and indeed, not only was the tribunal not reconvened as a tribunal but Mr. McDonald, who had presided over it with so much competence and detachment, was not even consulted during the period of eighteen weeks while the Minister's statement was undergoing gestation.As to the actual position under a quasi-judicial finding, I fully accept that where it is a case of administrative action, the Minister has the responsibility of saying whether or not a recommendation Alan he carried out; but I part from him if he contends that he is entitled to override or to alter recommendations of fact, or indeed to impose findings of fact of his own in a matter of this kind, unless one of the two basic conditions—either that there was no evidence or that the finding was against the weight of evidence—has been fulfilled.
Let us take for a moment the case of an accident at a level crossing on a railway; and let us remember that the railways are now nationalised. Assume that the gates are not closed at a critical moment, that a train runs into a motor car on that level crossing, and that as a result of the collision the driver of the car and his passengers are killed. An inquiry is ordered as to the circumstances in which that calamity took place, and the gate-keeper gives evidence that there were rules under which he should have let clown the gates at that particular hour, but that by some oversight he omitted to comply on that occasion with 1146 those regulations. The court, having heard his evidence, comes to the conclusion that his failure to lower those gates was one of the contributory causes of the accident—do not let us put it higher than that. Is the Minister of Transport then to step in and say: "Oh, but I do not agree. This signalman was an employee of a Government Department in the nationalised railways; therefore he comes under the cloak of my protection, and my finding is that although the signalman said that the rule existed, although he admitted that he broke it on this occasion, that was not even one of the contributory causes to the accident, which, in fact, was caused by the motorist approaching the level crossing at twenty miles an hoar instead of fifteen miles an hour." That is exactly the position in this case.
LORD PAKENHAMMay I ask the noble Marquess this question? In the case which he has given us, does he assume that the Minister agrees that the signalman is clearly guilty?
THE MARQUESS OF READINGI assume that the Minister is accepting the finding of the tribunal unless there is no evidence on which that finding could have been based, or unless it is manifestly against the weight o evidence. That is the test which that hypothetical Minister and the actual Minister in this case ought to have adopted. The Minister shakes his head. It may be a matter for a difference of opinion. I am putting only what I think to be the position.
LORD PAKENHAMFor the purpose of the record, may I say that I shook my head in the middle of the noble Marquess' remarks? I must not be taken as dissenting from every word that he has just said. I would like to look at what he said more carefully before considering it.
THE MARQUESS OF READINGI accept that it was an interlocutory nod. Let me now consider, for a few moments the second question. Assuming that the Minister had the right—which, as I say, with the qualification which I have given, I accept—consider for a moment whether he was entitled to exercise his power in this particular case. The noble Viscount, Lord Swinton, has dealt fully, and necessarily fully, with the factual position that arose. As I understand it, though I do not want to go into detail, 1147 the heart of the matter here was that the pilot—a very experienced pilot—having attempted and abandoned a landing in very indifferent weather on one air strip where he had been talked down to within normal distance of the ground, decided to attempt to land on another air strip where he would be dependent upon visual observation. The findings and the evidence as to what happened have already been read by the noble Viscount. The noble Lord the Minister has himself given an explanation at considerable length of what he contends happened.
But, as a layman in these matters, I would like to ask whoever is going to reply at the end of this debate to answer what seems to me to be a simple and not, perhaps, irrelevant question. Assuming, contrary, I think, to the evidence, that there was no regulation by which the pilot should have been informed in clear of the deterioration of the weather that was going on, is the Minister prepared to say that, in the circumstances of that evening, with the knowledge that the people on the airfield possessed that the weather was deteriorating and that the pilot was going to attempt a landing by visual observation unless he were told that it was impossible, it was the duty of no one to tell him to refrain from attempting that landing? Putting regulations aside, and apart from the issuing of a routine report at one time, a second routine report at the next time and another routine report at a third time, has no one on that airfield any duty to take an ordinary precaution for life and safety, even if it is not laid down for a particular time, and to issue an emergency report in clear—which the pilot will not have to decipher at a critical moment of his descent—that the weather has deteriorated since the last routine report and that it is unsafe to attempt the landing which he has in mind? If the Minister says that is the state of affairs, that there is no duty on anyone situated as his officials were on that airfield, to take any action of that kind, that will be noted, I think, with some dismay by those who are accustomed to use that airfield and other airfields under the control of the Ministry of Civil Aviation.
I come now to my third point. Even if the Minister were entitled in this particular case to do what he did—and I do 1148 not think he was—did he do it in the right way? I am not confining myself merely to his statement to-day that he ought to have made it plain to Parliament rather than issue a statement to the Press. What I am concerned with are the steps which he actually took in making this plain, and some of the expressions to which he committed himself in so doing. I confess that it seems to me that in almost every action he took in making this a matter of popular knowledge by his statement to the Press, he was monumentally misguided. Step by step, courses are built up—I regret to have to say it, but I sincerely think it appears on reading these documents—with relentless and almost monotonous ineptitude from the beginning of the handling of the situation to the end. The entire failure to communicate with Mr. McDonald before the statement was issued is inexplicable to the ordinary individual. I would ask the Minister to reply, at some stage, to the question of whether or not communication was held during those eighteen weeks with other persons who might have been interested—that is, the Dutch Government and the Royal Dutch Airlines. Was any communication made to them before the statement was issued to the Press here and in Holland that the Minister proposed to dissent from the explicit findings of the court and to insert a conclusion of his own?
There was at least a suggestion in the statement issued that the civil servants concerned had not had the opportunity to rally to their own defence. That contention cannot be upheld. There was another reference in the statement which, whatever the Minister's intention may have been (and I accept his disavowal of any such intention) was most unfortunately phrased. I think it was not only Mr. McDonald who drew from the text of the statement the inference that the pilot was now to some degree being held to blame. The apex of that pyramid of errors is the sentence to which the noble Viscount, Lord Swinton, drew attention, in which the noble Lord says, with an ingenuousness with which I confess hitherto had not credited him:
You would not I am sure, wish me to go into the reasons which have led us to this conclusion.To-day's debate, if nothing else, must in some degree have disillusioned him on 1149 that score. But surely the one thing which the public, not only in this country but in other countries whose aeroplanes use Prestwick and other airfields, would want to know, if the Minister was taking this extreme and exceptional step of differing front the findings of the court, was what were his reasons, in explicit terms, not in vague generalities, for taking so unusual and, as it turns out, so unfortunate a course. On that, nothing is said.I cannot help wishing that at this stage of this proceeding on the part of the Minister he had been wise enough to turn to some of his colleagues of more experience in general and more detachment in particular in this context, who might have advised him as to the limits of his powers, the method in which they should have been exercised and the form in which he should seek to make a communication to the public. Had he taken what seems to me an obvious course, we and he would have been spared much of the painful proceedings of to-day. There enters into this debate no Party consideration, and all our personal predilections are thrown into the scale on the side of the Minister; but, at the same time, I cannot honestly dissent from anything that the noble Viscount, Lord Swinton, has said as to the conclusions which we draw from what has happened and as to the results which, however regrettable, we think ought to follow in the interests of the restoration of public confidence here and elsewhere.
§ 4.54 p.m.
§ LORD CROOKMy Lords, I should not normally attempt to intervene in a debate on such matters as these. I have neither the great legal knowledge of the noble Viscount who initiated this debate and of the noble Marquess who has just sat down, nor the pilot's knowledge which I know the noble Lord, Lord Balfour of Inchrye, is likely to contribute at a later stage. Despite the fact that I have to ask your Lordships' indulgence for a bad cold, I rise to speak because I think it is about time that somebody said something in support of the Minister and, more important, because I have a very clear interest as one who has represented the Civil Service in the civil service trade union movement over a long period of time. I do not deny that it is the duty of the Opposition to raise matters of this kind, but I am bound to say—though perhaps my impression is due to 1150 my inexperience in having been in your Lordships' House only just over two years—that I felt that a tremendous build-up was being attempted by the Opposition this afternoon.
I would refer to one point made by the noble Viscount, who introduced the question of the timing of the publication of the Report. It is true that the Minister had it for some time, but it is also true that it took seven months for the investigator to prepare his Report and present it to the Minister. Nowadays, a report takes three to four months to consider and about three months to print. In this case, the Minister held the Report for four and a half months, which probably means six, weeks in which to consider the Report and three months in which to print it. If he did take a little time, it is better to be guilty of that than to be guilty of the indecent haste in issuing the Report—which was a charge made against him in another place in the course of questions during the past ten days.
I am not going to follow noble Lords better qualified than myself into any of the legal or procedural niceties. I think that the Minister's action was a correctitude to some of the inaccuracies of the Report. I am not quite clear what the noble Viscount meant when he referred to "findings of fact"—perhaps I still need further education on mat matter—but I think some of the findings are based on alleged facts and on misconsiderations of some of the facts. I congratulate the Minister, therefore, on having had the courage to do the right thing. In a matter like this, the Civil Service know that the eyes of the whole world are upon them. Any slip they make brings into operation the disciplinary machinery of a code which in the Civil Service is high and severe, and which, in a major or minor form, in one of five or six different ways, can operate up to anything as high as dismissal from His Majesty's Service. I do not dissent from that high standard. It is right to keep the Civil Service at the high standard at which they stand. But it follows that if the Civil Service are to accept that high standard of discipline, they must be satisfied that they are not subjected to injustice. I suggest that the Report has reached conclusions and made recommendations not all of which are in accordance with the facts, and that they 1151 run the risk of leading to injustice to certain civil servants.
It is said that if an individual is told that he has caused suffering and the loss of life of forty people, that is a terrible thing to have put at his door for the rest of his life. But if, in addition, a man is conscious that the charge is not in accordance with the real facts, then it becomes an even more dreadful accusation to make. In my view the Minister has averted what would have been a miscarriage of justice if he had merely written "Yes" at every one of the recommendations and conclusions of the Report. I believe the morale of the Civil Service, and particularly of the Air Ministry and Ministry of Civil Aviation, might well have slumped badly if the Minister had not taken this line. The Civil Service, which like the Navy is a silent Service, must have confidence in their leadership at the top, and especially in their Ministers. Their confidence in the disciplinary code has been shown not to be misplaced in this instance. This is not a case of the Minister standing by the Civil Service through thick and thin—and I know Ministers stand by the Civil Service, sometimes to their credit and perhaps not to their credit at other times. I congratulate the Minister on taking the action he did. He has considered coldly and dispassionately what steps he should take and he has had the courage to take them.
In this connection I should like to take up one comment of the noble Marquess, Lord Reading, as to civil servants not having an opportunity to speak in their own defence. Nobody denies the opportunity which they may have had at the original inquiry. But what opportunity of defence have they after the publication of the Report, notwithstanding that they see in it what they know to be inaccuracies? In the life which they live they have no power whatever to make any statement. They would not have the opportunity which any ordinary citizen faced with a court judgment against him would have, that of going to the Court of Appeal, or even to those of your Lordships who sit in a Judicial capacity in this House.
There are a number of recommendations in this Report, and I feel it is relevant to refer to the fact that a consider- 1152 able number of them are not exactly wise or well-founded. Those of us who have looked at the statements which the Minister has issued about the recommendations with which Part IX commences will know that a number of them are rather ill-advised. When we are being asked to treat the Report as something which is sacrosant and inevitable of adoption by the Minister, I think it is relevant, with regard to the first recommendation—that air lines should submit their navigation instructions to the Ministry—(this is clear, I am sure, to the noble Viscount who originally raised this matter)—to point out that the matter must remain the responsibility of the air lines, and that the recommendation is completely impossible.
THE MARQUESS OF READINGI am reluctant to interrupt the noble Lord, but does he not realise that these recommendations are administrative recommendations, which we have all admitted are in the power of the Minister to accept or not, as he thinks proper?
§ LORD CROOKI will accept that straight away. I venture to refer to them for no other reason than to point out to your Lordships that, if you take the recommendations as they stand, and if you take the observations which the Minister has published on them, it will be shown that the wisdom, knowledge and background of a number of the recommendations are not as great as has been suggested by noble Lords so far.
§ VISCOUNT SWINTONOnly three noble Lords have spoken, the noble Lord, Lord Pakenham, the noble Marquess, Lord Reading, and myself. We must not get on to a false issue here. I am in the recollection of the House, but on recommendations I said that the discretion of the Minister is and must be absolute. I quoted the "Titanic" recommendations. Therefore, this point is quite irrelevant. It is on findings of fact that I said the Minister had not the right to judge.
THE MARQUESS OF READINGMay I add this? Does the noble Lord remember the Minister's tribute to the unbiased and competent way in which the Report had been prepared?
§ LORD CROOKI was not trying to take the place of the Minister or to represent him in any way. I was expressing 1153 my own point of view, and I do not deny the right of other noble Lords to express theirs.
§ VISCOUNT SWINTONI am only anxious that my point of view should not be misrepresented.
§ LORD CROOKI gave way to the noble Viscount: perhaps I was foolish. May I say that I was not for one moment attempting to contradict the good sense or the wisdom of what the noble Viscount said? As he knows, I have the utmost respect for his judgment. What I was saying was that it is relevant, if one is criticising a Report and supporting a Minister who has dared to criticise the Report, to point out that in a number of other recommendations it is clear, as the noble Viscount said, that the Minister can make up his mind whether or not he accepts them. Although their basis may be well-founded it may well be that other points are not well-founded. I suggest, with regard to Form 2309, that the plain truth is that this Report is inaccurate or, alternatively, that it tries to build up a false picture—I am not suggesting any deliberate intent of this on the part of the learned gentleman who wrote the Report, but it does build up a false picture. So, if I may say so, did the noble Marquess when he said that surely there should be someone with the right to take action to issue statements without any instructions being on record to him.
I think the noble Marquess said there should be someone to issue warnings about the deterioration that was going on; and he was very critical. On that I want to make two points, one comment and one factual. As to comment, I have always understood (here I will be particularly guided by the noble Viscount, Lord Swinton) that one of the great safety sources in the control of aircraft is that there shall be known instructions exactly followed and not departed from by anybody. I am surprised, therefore and I would like to hear more of this—that the noble Marquess should suggest that someone should have discretion to depart from known codes of procedure laid down by the national or international bodies governing these matters.
§ VISCOUNT SWINTONAs the noble Lord has appealed to me, I would say that the answer is simple. The people on the airfield must give the reports at the 1154 times laid down; but that does not preclude them from giving additional reports when the circumstances make it desirable or necessary.
§ VISCOUNT SWINTONIn an aeroplane, after all, if you are in dangerous weather, you are talking to people on the ground all the time.
§ LORD CROOKI am obliged to the noble Viscount. He leads me straight away to the point of fact. He is good enough to inform me that he would regard it its right that, if the conditions deteriorated, some comment should be made. I come now to the question of fact and what the noble Marquess, Lord Reading, said. I would refer the noble Marquess to paragraph 108, at the top of page 20 of the Report, where he will see that the deterioration which he alleged took place is not said by the learned gentleman who signed the Report to have taken place at all. The Report says:
The evidence given by the observer, which the Court accepts, was that there was no considerable change or rapid deterioration after 2300 hours.Therefore, to a very large extent the observations which the noble Marquess had to make on that are not acceptable to me, and I am sure they will not be acceptable to other members of this House. The plain truth about Form 2309 is that there was a technical error. The Minister has quite candidly accepted that. The procedure was changed, and it is doubtful whether the instructions to continue making the entry at all were justified. That is as it may be: it sometimes happens in Civil Service administration that instructions to make entries on forms are ignored. But what matters is not whether some technical error in making an entry on a form was made but whether, in the result, anything wrong developed and any harm befell anybody. Whether that entry was made on that form or not, it is clear that under the existing instructions, once an entry on the form had been made, there was no justification or any right for any further statement to be made or any action to be taken. I am sure noble Lords, who often decry the automatic filling in of forms by the Civil Service, will not want to 1155 make any basis of the case here this afternoon that somebody ought to have made some other entry which would not have helped any other poor soul at all.There are many other observations I would like to make. I find myself unable to make some of them, because I do not wish to trespass on ground which would for one moment suggest criticism of a great pilot now deceased. I do not think the Minister or the Government rely in any way upon throwing blame on the dead pilot and crew who are not here to defend themselves. But I think it is a relevant comment that the conclusions do not refer to one thing only as being wrong: many things are referred to as being wrong. It may be a question of argument as to which is the apex of the structure, but there are a number of comments to be made.
Among the things which shake the confidence of the public—and I do not deny the words of the noble Viscount—I do not think we can overlook the reference to the erroneous charts. It is perfectly dreadful that this kind of situation can exist, and I was shocked to learn that the airmen of America, when operating in this country, have had maps which were not only a danger to their own aircraft but to the citizens of this country, who might have suffered and, for all we know, have suffered damage from accident. That was a map which showed a height of 45 ft. instead of 450 ft. If the American Army had that wrong in 1943, it is even more remarkable that a great airline like K.L.M. had copied their inaccuracy and used those maps up to 1949; and that the deceased pilot, the leader of the company and responsible for the Manual of Operations of the line, had taken no steps to see that his own charts were accurate. Your Lordships will have seen in the daily Press this week that K.L.M. have been involved in just the same kind of comment. It was reported from The Hague on Monday last that, in respect of the crash of the aircraft at Oslo on November 20, when, to the utmost regret of all of us, a number of children lost their lives, the aircraft hit a hill 14,087 ft. high while flying at 11,048 ft. over ground where the map, according to K.L.M., showed the greatest height to be 540 ft.
1156 There are many things other than the Minister's action to shake the confidence of the members of the public in air transport, but I do not think that public confidence will be restored merely by punitive acts which will bring about injustice, any more than it will be by fully-fledged attacks on Ministers of the Crown such as we have heard this afternoon. I am satisfied that the Minister has done the right thing, just as I am satisfied that it was right for the noble Viscount to have raised this matter in the exercise of the normal function of acting as deputy Leader of the Opposition. I am going to say this to him if I may. With the confidence I have in him and which the Civil Service had in him when he was a Minister, charged with the great responsibility and with the powers that he had in respect of air, my belief is that had be faced just such a Report, with the risk of grave injustice being done to members of His Majesty's Civil Service, he would have had the same high courage which my noble friend Lord Pakenham has shown in reaching the conclusions which were reached on this matter.
§ 5.13 p.m.
§ VISCOUNT SIMONMy Lords, of course, we shall all be at one with the noble Lord in saying that we want grave injustices to be avoided. But while it is possible to raise many questions about this matter, really and truly the actual issue is a simple one, and if I may I would point out to the House what I believe the issue to be. There are really two matters to be considered. The first is the limited and immediate question of this accident at Prestwick. Unfortunately, and I feel it deeply, it involves a personal question which is distasteful to me. I think I may say here what I am sure the noble Lord would say in private, that he and I have always had a willingness to recognise one another's attempts to do right. The question is: Is the Minister in any way justified in this particular case in rejecting a finding of fact? I agree at once that if there were no evidence in support of it; if, indeed, there were a reasonably strong argument to raise against it, the situation would be different. But here you have an inquiry set up by the Minister for the express purpose of hearing sworn testimony in public, examined and cross-examined, over ten days of time, entrusted by him to a man of experience and training, with 1157 an assessor sitting at his side who is himself an expert on this particular branch of flying. It is a very serious matter, to say the least, if a conclusion of fact which they reach is to be got rid of in this way. There is all the difference in the world between a finding of fact as to what did happen, and what was the cause of it, and making recommendations as to desirable changes in the future.
That is one question. Then there is a larger and more important question. With great respect, I do not agree with the noble Lord, Lord Crook, in thinking that this is a case of building up unnecessary concern on this second matter. There is a large and important question as to what is the proper way for an administrative Department to regard findings of fact by a court of investigation of this character. I could not for one moment agree that this kind of inquiry is just like the sort of inquiry conducted by an inspector of the Ministry of Health about the extension of the boundary of a town, or anything like that. This inquiry, though not, of course, conducted in the fullest sense by a judge, is essentially an inquiry directed in the first place to finding out what happened and what was the cause of what happened. If you examine the evidence as I have had the opportunity of doing, I do not think it is very hard to see that there are great difliculties in the way of the Minister in challenging this conclusion. If there was strong evidence given to this court of inquiry in support of this finding, then can it be proper for the Minister, without any sort of public investigation, with no new material and as a result of being cloistered with his own advisers in his office, to announce his dissent? With great respect to the noble Lord who has just spoken, I can assure him that the Court of Appeal to which he referred would never upset a finding of fact by a court which had arrived at it on abundant evidence. If there are other people who can do it, they are not imitating the Court of Appeal. I do not believe it is necessary to consider what would have to be done if there were no evidence. I can hardly imagine such a case, because the very reason for appointing the sort of person who is chosen on these occasions is because he does understand the evaluation of evidence and is the last man in the world to accept an injurious reflection unless he is satisfied that it is borne out by the evidence.
1158 I should like for a few minutes to make plain to your Lordships why it is that I am so honestly and sincerely distressed that Lord Pakenham, in his carefully prepared statement to-day, should have defended his action in the way he did. It is possible in a very few minutes to show to anybody who takes the trouble that that line of defence could not possibly serve him. He stated, quite accurately of course, facts about the weather and weather reports on this unhappy evening at a few minutes past eleven (I will use the ordinary description of time—11.06 and not 23.06, or whatever it may be). But the crash did not happen until nearly half an hour after 11.06 or 11.08. It did not happen at all in connection with any operation in which this aircraft was engaged at 11.06 or 11.08. It was a completely different and subsequent event. The noble Lord, who has examined the evidence, knows that perfectly well. The relevant fact, proved quite clearly in this evidence, was that a meteorological officer, at about twenty minutes past eleven, observed a deterioration in the weather and reported it. I will not delay the House by explaining this, or trying to explain it, in technical terms.
§ VISCOUNT SIMONI am afraid the noble Lord is looking at the Report; I have read the evidence also, and I am perfectly accurate. The meteorological officer made his observation at twenty minutes past eleven and he then went into his office and made his report.
§ VISCOUNT SIMONThe Report is not against the evidence. Let me quote the relevant facts—and may I emphasise that I do not do so with any desire to be other than fair. I shall not use technical terms. It is sufficient for this purpose to say that, whereas at 11.05 or 11.10 the ceiling was a ceiling of 700 feet, that is to say there were 700 feet which could be regarded as space between the lowest clouds and the ground, what was observed at the later period was that the ceiling I had dropped to 300 feet. The real issue in the case is, how did it come about that the pilot of this aircraft, who was 1159 relying on information from the ground, information which the ground staff were under duty to give him, never received that information in clear language? It would be absurd to suppose that a pilot in such circumstances would be able to "fish out" a code to learn what the code word meant. I gather from the noble Lord that in fact there is a regulation now that a communication should be made in plain language.
LORD PAKENHAMI did not put it in the way in which the noble Viscount has put it, but I will return to that point later.
§ VISCOUNT SIMONIf you please; I want the noble Lord to deal with the matter. Is it not the fact that there was observed and reported this deterioration which I have described from 700 feet to 300 feet, shortly before half past eleven? Secondly, is it not the fact that that information was never communicated to this pilot in plain language? And is it not the fact that the crash occurred after that—at, I think, 11.35 or 11.36?
§ VISCOUNT SIMONThat is the simple issue. On that issue there can be no doubt whatever.
§ VISCOUNT SIMONI am not at all sure about that.
LORD PAKENHAMIf the noble and learned Viscount will not accept my facts, I beg him to pause for a moment and look at them in the Report.
§ VISCOUNT SIMONI am just pointing out that this is the fact at issue. As for the way in which the matter was put to the Commissioner himself by the counsel who appeared at the inquiry for Lord Pakenham, I can only say—and I am myself familiar with these matters—that I know that an experienced counsel would not seek to press one way or the other. Perhaps I may be allowed to read a relevant passage. It is quite clear to my mind that there is no possible doubt as to what was the material issue. Counsel said, pointing out to the court what in fact is at issue: 1160
It is clear that in the view of certain meteorological people, weather prior to and during the material hours of 11.00 and 11.30 was deteriorating. There was a reference to deterioration in cloud and deterioration in visibility.Then he said:It would be a bold assumption to say that a pilot, flying his plane and approaching an aerodrome, has time to use decoding aids.Everybody would admit that. Then, referring to the directions on the form to the effect that directions should be given both in code and in plain language, he said:I suppose it is a reasonable assumption that what is broadcast for the benefit of aircraft interested in the weather round Prestwick will be received because of the continuing duty which is kept upon the wireless instruments; but I cannot refrain from expressing an apprehension that when it is set upon a document that deterioration shall be given in plain, then it should be given in plain.That was a perfectly fair observation to make. Then he said:Therefore at 11.30."—long after the times relied on by the noble Lord—and that was a very vital time so far as the arrival of the plane was concerned, there was in fact a ceiling of 300 ft.And he added:The pilot, accordingly, was getting to the vital stages upon information that he would be faced with 4/10ths at 300 feet in the critical stage of landing.That was not true because that would have meant that his real ceiling would have been higher. Then counsel said:Is that a vital factor, Sir? The view has been strongly expressed in evidence that it certainly was, because to Captain Parmentier information of a ceiling of 300 ft. would have meant one thing: `I will not land'.He would never have attempted to enter on this runway if he had known that the ceiling was dropping in this way.
§ LORD DOUGLAS OF KIRTLESIDEHe did not know that, because he had received a GCA intimating a 700-feet ceiling, and at 300 feet he could himself see precisely what the conditions were.
§ VISCOUNT SIMONThe ceiling had been 700 feet, but he had come down and was seen from the ground at 500 feet. He had continued to descend, to about 200 feet. He made up his mind that the cross wind was too severe for him to land on runway 32 before he announced that he was going to overshoot 1161 and was going to attempt the other one, and, while he was attempting to circle for the other one, the observation was made on the ground that the ceiling was reduced to 300 feet.
§ LORD DOUGLAS OF KIRTLESIDEHe did, in fact, know what the height of the ceiling was at that particular time. He had seen it himself. He did not need the information.
§ VISCOUNT SIMONSurely he was entitled to be warned by the people on the ground, from their own observation —it is not a question of travelling through a particular portion of the air—that the ceiling of the cloud generally had descended to 300 feet. There is no doubt whatever that he did not know that. If the noble Lord opposite really thinks there is any doubt about it, I must read two other pieces of evidence. It is not denied that this pilot was an extremely skilled and careful pilot. I find in this evidence two passages which are quite conclusive.
The first is from the head of the Flight Division of the Royal Dutch Airline, and the noble Lord will find it in the evidence of January 12, at page 443. He says that he knows Parmentier well as a most experienced pilot, and that it was Parmentier himself who had laid down the rule that the 'planes of his company were not to attempt to land on Runway 26 at night if the ceiling of cloud was less than 500 feet. It is pointed out to him that at eleven o'clock the report was that the height was 700 feet, and that by 11.30 the height was 300 feet. He says that the latter is "below the limit"—I would ask the noble and gallant Lord, Lord Douglas, to listen to this. He is asked if Captain Parmentier had been told at 11.30—that is the material time, not 11.06 or 11.08—that the cloud base was down to 300 feet what he would have done. The man replies:
He would never have made a visual approach to runway 26.He said again:It is quite certain that no attempt would have been made to land on runway 26.He was perfectly sure that Parmentier would have insisted on the company's limits being observed, limits which he himself had laid down. Therefore, he would not have attempted this landing. In the same way, the General Flying 1162 Superintendent of the Dutch Airline, Mr. Malouin, on January 20, at page 1231, is asked this question:Q.—Had the weather as reported on the 11.30 broadcast been brought to the knowledge of the pilot, in your view would he have embarked on the approach to runway 26?A.—No.Q. Why do you say that? A.—Because the ceiling was below limit.Nothing is plainer when one reads this evidence than that the, tribunal had before them this simple question—nothing to do with 11.06 or 11.08, but at the time when this experienced pilot was circling round with the idea that he was going to attempt a visual landing on the second runway—Was he given the information that there had been this deterioration and, if he was not given this information, why was he not given the information? As I have pointed out, counsel in the case put this issue perfectly clearly to the tribunal, and the tribunal beyond any question arrived at a conclusion about it on evidence which itself would be regarded by everyone as perfectly clear and firm evidence. You may say that there are arguments the other way.
§ LORD DOUGLAS OF KIRTLES1DEThe noble Viscount asked a question. My answer to him is that the pilot himself actually knew what the height of the cloud was and what the cloud base was at that particular time He had immediately before been brought in by G.C.A. on runway 22 and brought down to 200 feet. He had seen for himself what the height of the cloud base was.
§ VISCOUNT SIMONMy Lords, it is not for me to discuss that point with the noble and gallant Lord, but there are some noble Lords on these Benches who also know a great deal about it: I suggest to him that it is a perfectly different thing to say that the pilot who is going through a particular portion of the air can observe the conditions immediately around him and to say that the meteorological officer on the ground, whose business it is to study general conditions of approach, is merely giving him the same information that he already has acquired. If that were the case, what do you have a meteorological officer for, in order to give information to pilots who are approaching that aerodrome? If they can see everything for themselves, why tell them? The reason is because a man who is travelling through 1163 the air at 140 miles an hour is not able to look through the pilot's window to form a general view of the cloud base in another part of the area, whereas the meteorological officer is there for the express purpose of finding out and informing the pilot.
That, in fact, was the issue. That had nothing to do with what happened at 11.06 or 11.08. It had to do with the fact that there had been this deterioration and this lowering of the level after that, and the question was: In those circumstances should there have been a communication of that fact to this pilot who, in ignorance of it, found himself into the clouds and went to destruction? It is perfectly idle to suggest that there was no evidence to support that view. Nobody can read these papers without seeing that it was evidence which had to be considered. It would be perfectly foolish to suppose that this distinguished King's Counsel was not conducting this case with the impartiality and care that of course ought to be exercised. He had beside him a pilot who was well acquainted with all these circumstances and, indeed, flew this very kind of aircraft. In those circumstances, whatever else may be said, it cannot possibly be said that the conclusion at which this tribunal arrived is a conclusion without evidence. In those circumstances, I would ask the noble Lord opposite to think upon this. Obviously, if that is the right view, the question is: Do you accept it or do you not accept it?
In the course of my life, I happen to have conducted some of these cases. I was appointed by a former Air Minister to conduct the Inquiry into the loss of the R.101, with Lord Brabazon as one of my colleagues and a very distinguished professor of aerodynamics on the other side. We sat for many days and took a vast amount of technical evidence. Do you mean to tell me that when, after all that, we reported on substantial evidence that we thought the final construction of that airship was not proper, and that it ought to have had a longer experience in flight before it was sent on a long journey, the noble Lord, Lord Amulree, who was then Secretary of State for Air, after sitting on our Report for four months, would have been acting properly if he had then issued a notice to say: "Although 1164 I have received this Report and I publish it, I do not agree with it?" What is the object of these inquiries? The object of them is exactly this: that, however well qualified the Minister and his advisers may be, it is most desirable to have an impartial inquiry, an inquiry in which all the regular processes of evidence will be followed, and where the witnesses not only swear to tell the truth but they can be examined and cross-examined, and where every interest can be represented, and can present its view to the court.
While I quite agree that if there were no evidence to support the view, it would be a shocking mistake and misunderstanding, I hardly think it is necessary to discuss such a matter. It would mean that the President of the Court was an incompetent creature. I do not know how many people you are expecting to get in the future to conduct inquiries of this sort if you say, as you say in this case: "I appointed this gentleman, who is a well-known and a most careful man. He has conducted the inquiry perfectly properly. He has not admitted any improper evidence, and he has reached a conclusion of fact. Nevertheless, I cancel the conclusion, though I have no more evidence before me. He has not refused these people every chance of saying all they want to say he has heard the arguments on both sides, and he has come to this conclusion, but I don't accept it."
I do not wish to detain your Lordships' House longer about the particular incident. I am very sorry indeed to be controversial with anybody, especially Lord Pakenham, over it. But I do think it is perfectly obvious to anybody who reads this evidence that the explanation which he was good enough to offer us just now, all about weather reports at 23.06 or 23.08 hours, has nothing to do with the crucial question—namely, should not this pilot have been informed of this lowering of the ceiling before he met with the crash. I rather gathered, though I may be wrong, from what the noble Lord told us that in fact new arrangements have now been made: that when an air liner arrives at Prestwick to-night, and if there is observed a deterioration of ceiling from 700 to 300 feet under present arrangements the pilot will be informed promptly and in plain language that conditions have reached a stage in which it is not 1165 safe for him to descend. It is not disputed that the explanation given by the officer in charge is really that he received the information in code, that it did not make any impression upon his mind at the time and consequently, unhappily—I am not blaming anybody in using the word "unhappily"—the pilot went on without having the slightest information as to essential present conditions. It does not matter in the least that there was a separate short form for plain language because unless I misunderstand the noble Lord, there was no plain language report made to the pilot at all. So whether there was a separate form in plain language does not seem very important.
Now one comes to the general question. I agree entirely with what has been said by Lord Reading. I cannot accept the view that a Report of this kind is only "advisory." That is a confusion between two things which are quite different. You may have Reports which recommend what might be done in the future: that, of course, is advisory. But if you appoint a tribunal, picking your man because of his qualifications and directing him to hold a public inquiry, in the way in which all such judicial-minded inquiries are conducted, and he does his work properly, I really think it is not right to say that the whole Report, including his findings of fact, is merely "advisory." I would point out that if that view is taken—if this is a precedent and we are to understand that it is to be the view in the future—some very unhappy consequences will follow. Suppose that adequate evidence is given to such a court which leads them to form this view; suppose that when counsel for the Department sums up he points out that that is a view which they must consider and asks: "Is it a vital matter, and how do you regard it?": and suppose after all that, when there has been an attribution of some portion of the blame to the imperfect system at present in use, the Minister then says, "That does not matter: in my capacity as a responsible Minister, the head of my Department, without having any more facts, without having asked for further inquiry, I am going simply to cancel that out." My Lords, if that happens, serious consequences will follow. This is the gravity of the matter.
In the first place how can men of experience and standing who are trained to 1166 evaluate evidence be expected to serve if they are liable to be overruled by a political Minister when there is evidence which justified their conclusions and the political Minister has no more evidence before him and rejects the conclusions, no doubt after the advice of his own advisers? Some of us have been asked more than once to take part in such inquiries. If this goes on, the next time I am asked I shall want to say to the Minister, "But may I know first, if you please, what is my position? You ask me to put my impartial judgment and service at the disposal of the State in order to find out what are the facts in a very detailed matter, and you give me expert help"—
LORD PAKENHAMI hope the noble Viscount will forgive me. The expression has twice been used that I have relied on the advice of my officials, or words to that effect. I am sure the noble Viscount does not want to misrepresent the position. Naturally I have consulted closely with anybody technically qualified to advise me in a matter of this kind, but this was my decision. I must make that perfectly plain.
§ VISCOUNT SIMONI do not think I said anything which was contrary to that. I want to be perfectly fair. But what I am saying is that if anybody suggests that I should undertake the conduct of another inquiry like this—and I have had something to do with some of them, even as far back as the "Titanic"—I should want to understand first what is the position. If I am to do all this, and do my level best to arrive at the truth on a matter of fact, on evidence that is sworn and cross-examined on, do I understand that the Minister is claiming the liberty to say "I do not care what you say are the proved facts. I form the view, without having more evidence, without having seen the witnesses at all to the contrary"—
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)My Lords, may I intervene? The mention by the noble Viscount of the "Titanic" brings us into the sphere of the Merchant Shipping Act, where of course the tribunal does actually make the decision and takes away the 1167 certificate. But the Merchant Shipping Act expressly provides as follows:
That the Board of Trade, to whom the report is made …(b) if for any other reason there has in their opinion been ground for suspecting that a miscarriage of justice has occurred"—may order a fresh inquiry. I have never found any difficulty in persuading people to hold an inquiry into the loss of a ship merely because, if the President of the Board of Trade thinks that they have gone wrong, or that there is ground for suspecting that they have gone wrong, he can refer the whole matter to somebody else.
§ VISCOUNT SIMONI am obliged to the Lord Chancellor. I am aware of the provisions of the Merchant Shipping Act, but they do not, I think, affect the point I am making—namely, that for the Minister not to take any step of that sort, and simply to cancel a conclusion of fact on his own judgment, in my view would rather lessen one's willingness to endeavour to discharge a public duty. As a matter of fact, I have brought with me the report on the "Titanic" inquiry. It would surely have been intolerable, after that inquiry, in which I appeared for the Government long ago, after the details that we went into, if it had been said by the then President of the Board of Trade, "I know you find that, but I am going to say that I do not agree. Of course you do not want to know the reasons for which I have come to this conclusion."
A second anxiety I have is this. I am sure the Minister has tried to do his duty, but the fact is that the Minister's own officials are criticised here, and he has overruled that criticism, no doubt according to his judgment. The result is that his own reflections, after getting such information as he can from his own officials, lead him to issue a certificate in favour of his own officials, when I think the public expect these inquiries to be impartial in the sense that the decision should be a decision by somebody who has no possible bias or influence or sympathy with one side or the other.
I believe that at one time the Minister felt he was acting as he did because he was bound to defend his officials. The 1168 doctrine of ministerial responsibility has been suffering a considerable change. I remember that when the Mesopotamia Commission investigated the circumstances in which the medical services in that part of the world in the 1914–1918 War were faulty, and whether there were mismanagements in the organisation of that campaign, the Secretary of State for India, Mr. Austen Chamberlain, exercised what he thought was the application of ministerial responsibility by himself resigning. Ministerial responsibility really means that the Minister takes responsibility for what his officials, do. It does not mean that because his officials are unhappily reflected upon he feels a strong urge to say: "I must defend them, therefore I will say that it is not true." There is a grave danger that we shall misunderstand what is the real basis of ministerial responsibility if we allow this sort of thing to become a practice and the noble Lord rather seems to suggest that he might do it again. If we do the result will be a complete loss of public confidence in this class of inquiry.
The Lord Chancellor has referred to cases of ships being wrecked. There was the case recently of that magnificent new vessel the "Magdalena," which ran on a sandbank near Rio de Janeiro on her maiden voyage. If I recollect rightly, as the result of the inquiry—I will not say it was "established" but the evidence produced a conclusion at the inquiry that as a matter of fact there had been some negligence in the navigation of the vessel. Lloyd's paid up on the policies of insurance without question. But if, after an inquiry, a Minister can come and, without giving any reason in public at all, say "I cancel that," then there is produced a most serious undermining of public confidence.
The most serious effect of all, I am afraid, is this. We have lost many things in this country in recent years, but we have retained the respect of the whole world for the completely independent and impartial way in which we decide shipping questions and other questions involving international disaster. A Dutch ship owner would just as soon have a question about who is to blame for a collision in which his ship is concerned decided in our own Court of Admiralty as in his own country. Is it not a serious thing that we now have a situation in which it is 1169 openly avowed that a Minister who has appointed an inquiry of this sort, with all the safeguards provided by the regulations, none the less feels that he is entitled without giving any reason to cancel a conclusion of fact? He has given no reason until challenged—I do not say that he has given no reason now, but it is a quite different reason from that which he gave earlier. The reason which he gave a few days ago was that it was not the fault of his officials that this unhappy plane should have been circling at a height of 500 feet. No, it was not. But the pilot was told by his own officials at the airport that the ceiling was 700 feet, and he proceeded on that basis. Evidence was given by highly reputable people who knew him best that he was a most experienced and competent pilot, and would never have attempted to land if it had been brought home to him how the risk had been increased.
I am very sorry indeed to have to point my remarks in a way which seems critical of the noble Lord. I am confident that he did what he did with the best of intentions, but is it not plain that in this matter he really has made a mistake? I greatly fear that if he maintains this present line of defence he will have unwittingly struck a blow at one of our greatest assets, an asset which makes foreigners absolutely confident that matters which have to be decided, whether they are to their detriment or to their benefit, will be decided by independent people according to the ordinary rules and principles of our courts.
There is one other matter which I wish to mention. The accident happened in October, 1948. The Report was made in July. There may be good reasons for it, but as a matter of fact the Report remained in the office of the Minister until November. The result is that more than twelve months have elapsed since the accident occurred. As many of your Lordships are aware, we have a Statute called the "Public Authorities Protection Act" which says that no one can make any claim for damages in our courts on the ground of negligence unless they make that claim within twelve months of the time of the accident. It has unfortunately happened that the date when that Report was published, late in November, is more than twelve months from the time of the accident. I thought 1170 it proper to write to Lord Pakenham about this a few days ago pointing out the circumstance to him, and I asked him if he could not make some statement to show that the Government here would not seek to use that undoubted shield against claims, if good claims could be made, and that his officials would not say so either. I put that question to him now. I do not suggest that what I have just spoken of was done deliberately. But it seems to me that it will be a very unhappy result of what has happened unless steps are taken to put it right.
Finally, I feel that there has been a fundamental misunderstanding on this matter—I say this with all respect to the noble Lord—in the Minister's Department. I can illustrate it by quoting a single sentence which was spoken in the House of Commons by the Minister's Under-Secretary when some questions were asked. This was an answer which the Under-Secretary gave:
I should have thought that it is common procedure for an inquiry to be held and for the Minister setting up such an inquiry to accept or reject the findings.I waited to see whether the noble Lord would give me any precedent in the whole of our administration where this had happened. I have not heard him give any precedent. It is not so in the case of the Army or the Navy, though of course, if the court is not properly constituted or if a fair opportunity is not given to people concerned to be heard, or if evidence does not exist, the Judge Advocate-General or the Judge Advocate of the Fleet (with whom I used to be in Chambers) would advise that the decision must be upset. I have never heard of a case in which, when the proceedings were regular and there was abundant evidence to support a conclusion in an inquiry relating to our Armed Forces, the conclusion has not been accepted as a matter of fact which must be dealt with. The same thing is true, so far as I know, in any other form of inquiry of this nature. Therefore, it seems to me we are deciding an important thing here. Is this really a case of merely offering a Report to a Minister and saying, "Would you like to accept it or reject it?" If that practice is authorised, I believe it will do the greatest injury to our public administration, a thing which I am sure 1171 the noble Lord does not mean to do. I am afraid the truth of the matter is, however much I regret it, that the noble Lord has made a mistake, and I wish very much he had found it possible to accept it as a mistake more thoroughly than he has.
§ 6.1 p.m.
LORD CLYDESMUIRMy Lords, I rise with some trepidation to intervene in the debate because I have no claim to technical knowledge of aircraft or air navigation and I am wholly unlearned in the law. I wish to speak on an aspect of the matter not yet touched upon. Wide issues have been raised and much has been said about the action of the Minister, but I would say that so far as he is personally concerned, if he felt able to say that he has erred I should be happy to see the end of that part of the question. I am very much concerned with the reputation and safety of Prestwick Airport, which is of great importance to the United Kingdom as a whole and of special importance to the economy of Scotland. It is the largest airport in that country. It is aways open to traffic, having a twenty-four hour watch. It is known to have first-class radio aids. I believe that obstructions are well lit, though the cables on this occasion were not lit, and possibly the Minister may be able to say something about the lighting precautions that have been taken. There is some high ground to the north and north-east of the airport but the height is not great and in reasonable flying conditions this is not considered to be dangerous. There is also high ground farther out to the west, in Arran, in the Mull of Kintyre and in Jura, but the nearest of these hills is twenty miles away from the landing ground. One has only to look at the map of Scotland to see that it is difficult to find a wholly ideal airport, particularly approaching from the west: but that is how the Creator made us, with certain advantages and certain disadvantages. Taking it all in all, Prestwick is a good airport, has many advantages and compares favourably with international airports in many parts of the world.
I am anxious that Prestwick should not get a bad name over this unfortunate accident and what has followed. It is essential for Scotland that we should 1172 have a first-class airport of international importance. To my mind, the unhappy part of this whole affair is that it has been allowed to spread abroad that Prestwick is not safe and well managed and it is necessary that all possible steps shall be taken to correct that impression. The noble Lord will agree that an ill service would be done if through any loyalty to staff safety precautions were disregarded. In his opening speech, the Minister spoke of new and improved methods of communication that have now been installed, and I hope he will return to that matter in his reply. I should be happy if he could say more about it. The Report brings out that the rescue and search arrangements at Prestwick were not all that could be desired but reorganisation has taken place since the time of the accident, and I am glad to see from Paragraph 30 of the Report that adequate steps have been taken to make these services efficient. It was said that an hour and forty minutes elapsed from the time of the crash to the time when the first ambulance and rescue squad were on the ground. That was due to a collection of unhappy circumstances. It is important to note that steps have now been taken to better that service, and I hope publicity will be given to them.
My one and only purpose in speaking today is to make known that Prestwick Airport has taken all reasonable precautions. We find in the nine recommendations in Part IX of the Report that one of the recommendations refers to Prestwick alone. Recommendation (5) says that the mechanical recording of radio-telephone messages between ground and aircraft should be installed at Prestwick. The Minister may not be able to say much on these questions to-day because the debate has ranged round one point only, but I do not think the Government have yet declared their intentions on these recommendations, and possibly when he replies the noble Lord may be able to say whether they will be implemented.
LORD PAKENHAMWe have given some publicity to them, but not publicity on the same scale which has aroused so much attraction with regard to the conclusion. I can give the noble Lord a memorandum on all the actions, or otherwise, taken on this matter.
LORD CLYDESMUIRI thank the noble Lord. Publicity should be given to the steps being taken to render Prestwick Airport absolutely safe. During the war Prestwick was the gateway from the West of the whole United Kingdom, and Scotsmen had hoped that it would be the great gateway after the war. They hoped it would be the airport for the Atlantic routes, but that was not possible, for reasons with which I will not deal now. There was at that time in Scotland much criticism of the Ministry which arose from disappointment that Prestwick could not be continued as the principal United Kingdom airport, but no doubt its distance from London chiefly influenced the Minister in his decision. Now there comes this further blow and Scotland's premier airport runs the risk of getting a bad name. I trust that anything that needs to be put right will be remedied. I hope that one of the results of to-day's debate will be that the safety and adequacy of Prestwick Airport will be established and made widely known.
§ 6.8 p.m.
§ LORD NATHANMy Lords, I have always held the view that in regard to inquiries into accidents in civil aviation it is essential that we should establish a sound doctrine. It is not an easy thing to do, because although there have been experiences in the past in different fields of activity, civil aviation presents its own particular problems. It presents its problems from a variety of aspects, of which perhaps one is the most pertinent—namely, that it is an activity which is under international guidance; and rules and regulations as to safety and the procedure at airports and elsewhere are those which, by international obligation, we have covenanted to observe in relation to the International Civil Aviation Organisation as an organ of the United Nations. So it is not merely a domestic matter. That adds to its complexity. It is important that we should justify a real confidence in travellers by air, and in the pilots and crews of aircraft, that everything that has been laid down by international convention for safety will be observed, and that if an accident should occur there will be, as the noble and learned Viscount, Lord Simon, said, an appropriate investigation into the facts. That is the object of an investigation—not to impute the blame to 1174 individuals so much as to find out just what happened and to ascertain the facts.
The first occasion on which I addressed your Lordships' House, when I held the office now held by my noble friend Lord Pakenham was when I gave an answer to a Question put to me by the noble Viscount, Lord Swinton, as to the hearing of investigations in public. I then gave an undertaking that these investigations would be held in public. From that moment to the time when I ceased to be Minister for Civil Aviation, just after the time of the receipt of the Newton Committee's Report, to which reference has already been made, this question of investigations was one which occupied a central point in the attention of the Ministry. I suppose, in general, your Lordships would agree that whether it be an inspector's investigation, or whether it be a court of inquiry (as it was in this case) the person appointed to conduct the inquiry should ascertain the facts and exercise his best judgment upon those facts, without regard to how his findings may affect the Ministry, the Minister, the crew, the operators or whoever it may be. What is required from him is the ascertainment of the facts to the best of his ability, and an expression of opinion on those facts to the best of his judgment. We have here this very detailed, careful and elaborate Repot made by Mr. McDonald, who it is clear has given an enormous amount of care to the holding of the inquiry and the preparation of the Report.
I suppose your Lordships will agree that in the appointment of a person to act as Commissioner or a court of inquiry the Minister is exercising a quasi-judicial function. Ministers are well experienced in exercising a quasi-judicial function at one moment and administrative functions on much the same subject matter not long afterwards. Obviously the Minister must not intervene to affect the minds of the members of the court, or in any way attempt to influence decisions or the findings at which the court may arrive. But that quasi-judicial interregnum, if I may use the term, as it seems to me comes to an end with the receipt of the Report. It is the duty of the Minister to publish the Report—when I say "duty" I do not mean that it rests upon legal obligation, but certainly it rests on the practice which has been adopted. Indeed, I think the 1175 procedure which the Minister has defined for the holding of investigations, when publishing the Newton Committee's Report as a White Paper, is a great improvement on the old procedure, and it ought to work well. It was certainly contemplated by the Newton Committee's Report that investigation reports should be published.
Once the Report is in the hands of the Minister ready for publication, however, it seems to me that a new situation arises. He has to consider the Report and try and deduce from it what advice is there given to him, and what warnings are held out to him; and he has to determine what action he should take upon that Report. While I firmly hold the view that the Minister must publish the Report, I equally hold the view that the Report is something upon which he is bound to have an opinion; and, having an opinion, he must act upon that opinion, and must be prepared to justify his actions in whatever may be the proper place. I heard both the noble and learned Viscount, Lord Simon, and the noble Viscount, Lord Swinton, say with perfect truth—I do not dispute it for one moment—that it is not possible to say there is no evidence upon which certain opinions could be based. But that is a very different thing from saying that every reasonable person would come to the same conclusion on the same evidence. The facts are available in the Report and in the volumes of evidence for each one of your Lordships to read; and I venture to say that, having read the evidence and the Report carefully, each of your Lordships would be in a position to form an opinion, which opinion might or might not coincide with the opinion of Mr. McDonald.
I submit that a court of inquiry is not in the accepted sense a judicial inquiry. There are no parties; the matter is not presented by a plaintiff and a defendant. It is, as the noble and learned Viscount, Lord Simon, said, an investigation as to what happened. It is, of course, of infinite advantage that it should be conducted by King's Counsel with the skill and experience of Mr. McDonald, accustomed to listening to and weighing evidence, and deducing conclusions from that evidence. But that does not make it a judicial inquiry. No points of law 1176 are involved. I heard one noble Lord say that the court had the advantage of hearing witnesses. That is no particular advantage in a case of this kind. Veracity is not in question; the facts are there set out for everyone to read. When it is a mere question of fact, without veracity being impugned, it is open to any man sufficiently skilled and attentive to form his own judgment upon the evidence which is placed before him. That is why we have juries, so that they, common men drawn from the general public, may form their own conclusions on the questions of fact presented to them, though presided over, and to a large degree guided, by a judge. It seems to me not only essential but indeed inescapable that the Minister should form an opinion. Is the Minister to be the only person who is to be excluded from the right to have an opinion and to express that opinion? It is open to every one of your Lordships to hold and express an opinion. What would be the position if the noble Earl who put this Question, instead of putting it in the form in which he has posed it, had put it in this way:
What action has the Minister of Civil Aviation taken in regard to the absence of a clear language statement as to the weather, namely, a deterioration report?The Minister would be bound to consider the Report in all its aspects upon that subject, and he would say in answer to that question either that some action should have been taken, or that some action should not have been taken, and that he had acted accordingly. He would be bound to exercise his judgment upon it.I can imagine the noble and learned Viscount, Lord Simon, as well as the noble Viscount, Lord Swinton, making on such a Question much the same speeches as they have made to-day. They would require a reply, and do require a reply perhaps, from my noble friend as a result of the judgment which he has formed on the material contained in the Report and the volumes of evidence, all open equally to your Lordships and the public at large. My noble friend has expressed regret to your Lordships for the manner in which the announcement which he wished to make was placed before the public. But that at some stage he would be bound to form an opinion on that subject and act upon that opinion is a matter upon 1177 which, I submit, there could in actual administrative practice be no doubt at all.
I do not propose to embark upon the question to which other noble Lords have given much attention—that is, as to whether or not a deterioration report at a particular moment would have affected the accident; whether or not the fact that the charts were obviously erroneous was the cause of the accident, or whether or not the over-shooting of the runway with visual sight of it was wise or unwise. I do not propose to discuss any of those questions, because they seem to me to be irrelevant to the issue before your Lordships' House which as I see it is: What is the sound doctrine as regards these inquiries? I believe, as I have submitted to your Lordships, that it is an inquiry by an independent person; the hearing of evidence; the ascertaining of the facts; the submission to the Minister of the conclusions; the publication to the public of the Report and the conclusions, and then action by the Minister, coupled with a statement as to why action has or has not been taken.
§ 6.24 p.m.
LORD STRABOLGIMy Lords, this has hardly been a balanced debate, in that I have the honour of following my noble friend from the same side of the House, whereas I would much rather have followed one of the noble and learned Lords who, with their great legal prestige and their great experience, have joined in the hunt against my noble friend the Minister of Civil Aviation. It is no good the noble Lord, Lord Balfour of Inchrye, shaking his head. It is a hunt.
§ SEVERAL NOBLE LORDS: Nonsense.
LORD STRABOLGIBut I suppose they are entitled to do this in the ordinary give-and-take of our political life. What has been my noble friend's offence? His offence has been to join issue with this court of inquiry on one comparatively, but very important, narrow issue. This is the issue upon which we have heard so much from the noble and learned Viscount, Lord Simon, and the noble Viscount, Lord Swinton. The issue really is whether, by not sending out en clair a report at a certain time of the deterioration of the weather, the difficulties and hazards of the landing were increased. That is the charge on one side: that the 1178 failure to send out this message was a contributory cause—to put it no higher—to the terrible tragedy which followed. As we have heard in the admirable intervention by my noble friend Lord Douglas, in point of fact to have sent that information en clair would have been redundant, because the facts are these.
The messages were sent perfectly correctly and according to routine, up to the point where the beginnings of the very intricate operation of bringing this aircraft down to the runway by the ground control commenced. That was successfully done. The pilot and his aircraft were brought down by the ground control approach system to within 200 feet of the runways. From then on, he, the pilot, knew as much about the weather as anyone in the control station, in the meteorological station or anywhere else, and to have sent him messages about deterioration when he himself was fully engaged and had already decided not to land on one runway but on the other, would have been redundant, confusing and unnecessary.
When I knew that this debate was to take place, and the hunt had been started against my noble friend, I tried to obtain the actual minutes of evidence and I was told that they had not been published. As the noble and learned Viscount, Lord Simon, says, I daresay that he and my noble friend are the only members of your Lordships' House—together with the Lord Chancellor, of course—who have actually read those minutes. Certainly I have not been able to obtain them. I will not inquire, of course, how the noble and learned Viscount obtained his.
§ VISCOUNT SIMONThere is a little innuendo in that. I will tell the noble Lord how I obtained them. I read the statement which was published some days ago, and I wrote to Mr. Mcdonald and said that I did not intend to form any judgment on the matter until I had had the opportunity of examining the evidence, and that if there was no objection I should be glad to reed it. I have read it. I hardly think that Lord Pakenham will wish to contend that he is the only person who should read the evidence, and I hope I have made proper use of it.
§ VISCOUNT SIMONI thought you did.
LORD STRABOLGII wish I had known how to get it—that is all. May I here quote from the Report as provided for members of your Lordships' House? Again I refer to paragraph 108, which, from our point of view, is the crucial paragraph. After all, this is the Report based on the evidence. My noble friend Lord Crook dealt with the first part of it. May I draw your Lordships' attention to the passage which I am about to read from the Report? It states:
The evidence given by the observer, which the court accepts, was that there was no considerable change or rapid deterioration after 23.00 hours. He was out of his office observing the weather for most of the time between 23.00 and 23.20. and for parts of that period was accompanied by one of the forecasters on duty who was a man of 38 years of age and had been a forecaster for eleven years, of which six had been spent at Prestwick.I agree with the noble Lord who spoke last from the Front Bench opposite in what he said regarding the aerodrome. I know this aerodrome well. I have had occasion to use it myself and I know it to be one of the most fog-free aerodromes in the British Isles. I quote again:He stated there was no appreciable deterioration of visibility, but a slight deterioration in cloud occurred towards the end of the period, and that he saw no ground for criticising the accuracy of the observations recorded. He was of opinion that there was no such deterioration between 23.00 hours and 23.20 hours as required the issue of an intermediate report. The deterioration in cloud occurred at the time of the normal routine report issued at 23.30. Further, the fitness figure for the airport at 23.30 hours was the same as it had been at 23.00 hours, namely, three. The court is accordingly satisfied that there was no failure in duty in this respect on the part of the observer.The observer did his duty. The charge is that the meteorological officer did not send the messages in clear to the incoming pilot about deterioration when the incoming pilot was fully aware of the information himself.This, after all, was a Dutch aeroplane, piloted by a prominent and distinguished Dutch pilot who, I have no doubt, spoke English. But Prestwick and other aerodromes are increasingly used by aircraft flown by pilots of many nationalities who may need a code message. I ask any noble Lords here—and there are many who are experienced in these matters—whether it is not better, probably, to send 1180 a code message to these foreign pilots than to send a clear message in English, when the pilot coming in may be a French or Czech or Swiss pilot, or a pilot of any other nationality. My own feeling is that too much has been made in the Report—quite honestly, of course—of the failure to send this one deterioration message en clair. It is on that that the case against my noble friend's Ministry has been founded through supposed failure of the ground staff to send certain messages. With that my noble friend dissented and I must say that he was doing the minimum of his duty in dissenting from this particular aspect of the findings of the court and in defending his officials from what I really think was an unreasonable judgment on the action or lack of action on the part of the ground staff. This pilot had reached such a distance from the ground that he knew all about the weather; and the sending of repeated messages about the weather would have been redundant, confusing and unnecessary.
The other point I wished to make was touched upon by the noble Lord, Lord Clydesmuir, who alone among noble Lords mentioned it. He spoke of the use of overground cables near this aerodrome. I think we must all be aware of the danger to navigation of these cables, and I hope that one of the results of this most deplorable accident and loss of life and of the attention that has been drawn to the whole subject will be that these overhead cables will be put underground when they are anywhere near an aerodrome. A pilot at night can see a hill, but these cables must be very difficult to distinguish. I have advocated this for a long time in another connection. When I was a Member of Parliament for Hull I was often pressing that telephone cables should be put underground; whenever there was a heavy storm we in Hull were cut off from the south because wires were broken down. I was always told that the cost would be excessive. But this, it seems to me is an additional reason why cables anywhere near a large or important aerodrome should be taken underground.
The other observation I have to make is this—and I want to be very careful, because I do not wish to hurt anyone's feelings. The Newton Report itself suggests that there should be one legally 1181 trained Commissioner sitting with one or more assesors in these courts. In this particular case there was a distinguished lawyer and an assessor. In an inquiry of this tremendous importance there ought to be more than one Commissioner, and I think it would be better to have three. I do not see any reason why they need all be experienced lawyers. There has been a growing tendency to concentrate inquiries of this sort in the hands of the legal profession. I have the greatest possible admiration for that profession, but the danger is that in a case of this kind they become a new sort of priesthood; their findings are looked upon as sacrosanct, and no one dare question them. That can be unhealthy. I make, as I say, no reflections whatsoever on the legal profession, but I think that in a case of this kind it would be better to appoint three Commissioners or, at any rate, more than one Commissioner, and, of course, professional or technical assessors as required.
After all, as my noble friend, Lord Nathan, reminded the House just now, courts-martial are conducted by laymen, and our courts-martial have a great reputation for impartiality and success. I would remark also that in the case of courts-martial the Admiralty and, I think, the Army Council—certainly the Admiralty—have a right of overriding, which is another precedent for my noble friend in this case. I hope it will be possible in future that these considerations may be borne in mind—and let me say again, my Lords, that I say this without the least shade of reflection or innuendo of any kind on the learned lawyer who conducted this inquiry, or on the profession which he adorns. I thought when I heard my noble friend's statement at the beginning of the sitting that the debate would have fizzled out. It was a frank admission, that perhaps he would have done better to make the statement in the first place to Parliament. As regards other noble Lords, the briefs had been prepared, speeches had been thought up, the midnight oil had been burned—
§ SEVERAL NOBLE LORDS: No!
LORD STRABOLGIHard things have been said about my noble friend—
Who touches me touches my brother.The midnight oil has been burned, briefs have been studied, speeches have been 1182 prepared, the evidence has been read and digested—
§ VISCOUNT SWINTONIt is quite obvious that the noble Lord's speech is extempore!
LORD STRABOLGIThat is a great compliment to me; I am afraid I have not that ability. I have taken what information I could. I have seen the evidence supplied to me by those who have read the whole of the evidence. I hope that my noble friend will answer the points that have been made and that your Lordships will agree that the least he could have done was his duty in disagreeing, as many of us here on these Benches do, with that particular aspect of the findings of the court. If he had not taken the action he did, it would have been an injustice to the civil servants themselves, for whom, after all, your Lordships as well as the Minister have a responsibility.
§ 6.41 p.m.
§ LORD BALFOUR OF INCHRYEMy Lords, I have two regrets in this debate: the first is that the debate has been rendered necessary; the second is the speech of the noble Lord who has just sat down. I also regret something of another speech, to which I shall come in a moment. What I particularly regret is the terms in which the noble Lord, Lord Strabolgi, referred to this debate. He said it was a "hunt" of the noble Lord, Lord Pakenham. I hope the noble Lord himself does not take that view, because we on this side of the House do not feel like that. If another Government of any complexion were in office, and if a Minister of that Government conducted himself in the affairs of his administration in the way that we feel the Minister has done on this occasion, whatever political complexion that Minister might be, noble Lords on this side of the House, and perhaps on all sides of the House, would demand a debate and I hope they would conduct it in the fair and reasonable manner adopted this afternoon.
LORD STRABOLGIWould the noble Lord demand the resignation of a Conservative Minister, as the noble Viscount, Lord Swinton, did?
§ LORD BALFOUR OF INCHRYECertainly. I regret this debate because it is both distasteful and painful. It is 1183 distasteful because undoubtedly it involves the ministerial position, and therefore the personal position, of one to whom we have been accustomed to listen with pleasure in this House and for whom I can genuinely say we have affection. It is painful because we are dealing with a human tragedy which involved the deaths of a large number of people, including skilled air crew. I would like to associate noble Lords on this side of the House with the remarks made by the noble Lord in his statement on the sympathy which we feel for those who have suffered through this tragedy. I do not want to go into the detailed technicalities that have been touched upon by some noble Lords, nor do I wish to touch upon the position of a Minister in regard to quasi-judicial inquiries, because that matter has already been dealt with fully by noble Lords who are far more qualified in the legal world than I can ever hope to be.
I should like to deal for a few moments with the circumstances of that night as I see them. The noble Lord, Lord Strabolgi, said that the issue really revolved round the questions: first, should news of the weather deterioration have been passed to the aircraft; secondly, if such information had been passed, would it have made any difference to the pilot's actions?
§ LORD BALFOUR OF INCHRYEThe question is: Would it have made any difference to the pilot's landing? I would slightly amend that question and say: Would it have made any difference to the pilot's actions—that is to say, might it have altered his decision to attempt a landing? In the first place, there is no dispute that weather deterioration did take place between 11.00 o'clock and 11.30, towards the latter end of that period. Anyone who reads the account of the evidence knows that the situation altered broadly from four-tenths cloud, with a ceiling at 700 feet, to six-tenths cloud, with a ceiling at 300 feet. Should that have been passed to the aircraft? Again, I am not going to argue the points. I take the view that it should. But that view has been presented most forcibly by 1184 my noble friends Lord Swinton, Lord Simon, Lord Reading and other noble Lords, so I leave that to the Minister to answer.
The second point to which I want to pay some attention is: Would it have made any difference to the pilot's actions? Let us for a moment see the influence of authority as to whether the receipt of weather reports is or is not important to a pilot in his aerodrome approach. I take, first of all, the evidence of Mr. Jessop, the forecaster at Prestwick. He was asked:
Is it not fairly important that deterioration in weather conditions should be passed at once to the pilot's aircraft?The answer was:Yes. It is.There is only one more quotation with which I have to weary your Lordships. This is from the evidence of the air traffic control officer at Prestwick. The questions and replies were as follows:(Q.): "So that, if you get an emergency or intermediate weather report from the met. office, that can go straight on to the air as quickly as it takes to speak through the R.T.?—(A.): That would be passed immediately by the officer on Approach Control to the Ground Control officer who can pass it straight on to the aircraft.(Q.):"I think you will agree, as a very experienced officer yourself, that it may be of vital importance that any change of weather should at once be passed to the aircraft?—(A.): It may be.(Q.) "It may be of vital importance?—(A.): Yes.So I think we can take it that the opinion of authority is that deterioration of weather is of importance.I now come to the intervention by the noble Lord, Lord Douglas of Kirtleside, on this particular point. The noble Lord's intervention was to the effect that this information would have made no difference, because the pilot had already come down below the ceiling and knew the weather he had to pass—I think that is putting it fairly. I submit to your Lordships that, in airman's language, the weather was "closing in." In fact, there was that increased cloud and a lower ceiling and, when the pilot came down through the cloud base, if he had been told, as he was, that the cloud base was at 700 feet and he had come down to 200 feet to land, when he saw the around he would have assumed that that was a wisp of cloud, about which we all 1185 know when we are flying and are about to land. In those circumstances, he might well have decided to try another landing (as it seems to me he did), and to come round on to Runway 26, because his broad information was that the cloud base was at 700 feet. He came out of cloud at 200 feet and he may have said to himself (it is a common experience): "this is a wisp of cloud and I shall be through it in a few moments." Had he known that the general cloud base had descended to 300 feet, I submit to your Lordships, the pilot's decision would probably have been to open up his engines, to go up again and find some alternative airport in Britain or, if necessary, return to Holland.
The point I am trying to establish is, that on that night routine was not enough. I think the noble Lord in his speech mentioned that routine had been followed. Of course, it is important to follow routine. But there comes a time of emergency, a time of bad conditions, when individual initiative is required and set routine is not enough. The noble Lord, Lord Douglas and I have flown together for many years, and I maintain as a pilot that, coming in in what is called "dirty" weather, I would wish to know every available piece of information and that the ground control should give the pilot every available piece of information. The simplest manner in which to do that would have been through a message on the R.T. en clair that the weather had deteriorated and that the ceiling was down to 300 feet.
I want now to refer for a moment to the speech of the noble Lord, Lord Crook. That gives me, if I may say so without offence to him, a third regret, because it seemed to me that he implied some degree of responsibility by the K.L.M. Company as a company that is failing in its duty. He quoted a newspaper report which I have not seen, although some of your Lordships may have, of an accident which took place somewhere near Oslo. That imports prejudice into the debate because neither we nor, I suppose, the noble Lord know the circumstances of the accident. All we have is a newspaper report saying that the charts showed the wrong height. We do not know whose responsibility it was to supply those charts, or whether that responsibility was fulfilled. I do not think 1186 it is fair to let it go out from this House to the K.L.M. company that they are judged as wanting, and, in support of that, to quote an accident about which there has been some report in the Press. I want to say a word on this question of charts. I would not have done so, but for the fact that the noble Lord, Lord Crook, did, because it is generality admitted in the inquiry that the error on the chart had absolutely nothing to do with the accident. If any one reads the Report, and is fortunate enough to be able to read the evidence, he will see it is a typographical error of "45" instead of "450." Nevertheless, all the ground round that "45" is marked with the correct heights.
§ LORD CROOKPerhaps the noble Lord with his customary kindness would allow me to intervene, to say that at no time did I try to impute anything to K.L.M. I quoted what they themselves had said about Oslo, and I referred to the actual words used by Mr. McDonald as to the erroneous charts.
§ LORD BALFOUR OF INCHRYEBut the point about the erroneous charts is really a stricture upon the noble Lord's Department. I was not going to raise that point, but, since the noble Lord has raised it, I would ask him to look at page 9 of the Report, paragraph 36, which says:
No official charts for Prestwick had been issued by the Ministry of Civil Aviation at the time of the accident. Such charts were issued in December 1948, and made available to all users of the airport.The Report goes on:It appears quite extraordinary that instrument let down charts"—that means charts which are topographically accurate—for airports in Great Britain should be based on those of a foreign authority, when detailed and accurate Ordinance Survey maps are available for such a purpose.My Lords, that error has since been rectified by action on the part of the noble Lord's Department. I wanted merely to clear up that point with the noble Lord, Lord Crook, that all the high ground was marked correctly; that if forty-five was the correct height, it would be like a small well in the middle of hilly country, and anybody taking any account of the topographical features must know that it was a typographical error—
§ LORD NATHANMay I point out to the noble Lord that Mr. McDonald, in his conclusion at paragraph 173 on page 31 of the Report, specifically states that the erroneous charts were a possible cause of the accident, on the same footing as any other cause?
§ LORD BALFOUR OF INCHRYEWell, we are all entitled to our opinion. It is difficult to see how one typographical error in the charts was a contributory cause of the accident. But anyhow, if that is so, the responsibility rests with the Department concerned for not having issued before December, 1948, the necessary correct charts for operators to come into the aerodrome.
§ LORD CROOKThey are the K.L.M. charts.
§ LORD BALFOUR OF INCHRYECertainly, because no charts were issued by the Ministry of Civil Aviation, although they have been issued since December, 1948. I do not want to go further into the technical details. I wanted to deal with the point of Lord Douglas, and to say that all necessary information which would have helped was not passed, and also to clear the K.L.M. Company from Lord Crook's allegations.
I think the serious aspect of this unfortunate series of events is that the race of the air line operators in the world will be profoundly shocked at the circumstances which have been revealed as surrounding this accident. Again, I think they will be shocked at the Minister's action and attitude to-day—I am sorry to say that, but I believe it to be true. He says that a quasi-judicial inquiry into the death of a large number of people, including probably one of the most skilled pilots in the world, is an inquiry of an advisory body to himself. He is an interested party in the particular investigation. I believe that air crews and overseas operators will be disturbed even beyond this. They will be disturbed in that from this debate the Minister is quite unrepentant as to his action and attitude to this inquiry, except in one way which we were glad to hear—namely, that he says, "I did not do wrong, but what I did I did slightly in the wrong way." Indeed, he says in effect that he would act again in the same way in similar circumstances.
1188 The point made by my noble friend Lord Swinton was that the only ground that would justify the overriding of the findings and the Minister imposing his own findings would be if the Minister had satisfied Parliament beyond doubt that there was no evidence to support the findings. My Lords, this House and the country will judge on the weight of the debate to-day, as will the world outside. The Minister stresses his decision that he was right in what he did. We have all made mistakes in life. Not one of us can say he has not. Sometimes our errors have had grave consequences and sometimes not. But here is an error which we submit is a grave error and which has a wide implication outside this country. I do not believe the Minister can brush away the damage he has caused to the safety standards of aviation and the administration of safety in aviation by any answer that he may give to the debate this afternoon. I am afraid that he has caused grave damage to the confidence of the air world in Britain's air administration, and, after all, the interests of aviation are above the interests of any particular individual. I believe that the interests of aviation will not be fully restored so long as the administration remains in the noble Lord's hands.
§ 7.0 p.m.
LORD PAKENHAMMy Lords, may I take it that I have the permission of the House to speak again? I gather that I have that permission, and I am grateful to your Lordships. It has been suggested on one side and resisted on another that this was a hunt. In the old days I have hunted the fox myself, and I recall that it used to be argued then that the fox enjoyed it. I always doubted that at the time, and nothing which I have experienced since has led me to change my view. Be that as it may, I fully appreciate the position of noble Lords opposite. As they have said, they feel bound to speak their minds on a public question without any regard to the individual. I agree. What would be the point of public life if discussions of this sort were conducted with kid gloves because, knowing someone who was concerned and, possibly, liking him, we therefore felt that we must treat him lightly? I accept that standard of discussion.
I will say only one thing about the storm of opinion which I am told I have 1189 aroused by my action. It was aroused very early in the day before the Report had appeared. The Report appeared first thing on Wednesday morning. On Tuesday evening I was hunted by journalists. I was rung up three times by the Daily Express. When I arrived home at about midnight, after fulfilling a dinner engagement, and had retired to bed, I was rung up by a reporter of the Daily, Express who said to me: "Is it true that you are going to resign?" That was how the political campaign started. Noble Lords will realise that I entertain the same feelings of good will towards them as they appear to entertain towards me, but I refuse to admit that this is a non-political affair. I cannot accept the noble Viscount's contention—
§ VISCOUNT SWINTONI have nothing to do with anything that happened between the noble Lord and the Daily Express.
LORD PAKENHAMI am not associating the noble Viscount with any newspaper except the Sunday Times, in which I was accustomed to read his memoirs in happier days. The point I was making was this. The noble Viscount at one moment talked of sitting in judgment on me. I will take a great deal from noble Lords opposite, but I cannot regard them as having any right in this matter to sit in a judicial capacity or even in a quasi-judicial capacity. In my view they have no right to deal with this matter by expressing a judicial or quasi-judicial opinion, and I cannot regard this as being in any sense a court of law in which I am in some way haled up and made to answer to the noble Viscount in an impartial atmosphere. The noble Viscount and other noble Lords in the last four years have frequently paid me compliments which I have amply reciprocated. Now, because I have made a slip, they say: "Away with him. This man is clearly incompetent. Dismiss him at once." I am bound to express surprise, because I should never have dreamed of behaving in that way myself. I say that in unequivocal terms.
Let us now turn to the grave issues. I do not want to make this a personal affair, though it is difficult to avoid the first person singular when you are asked to explain your actions. I followed this tragic affair from the earliest days. I 1190 was at Prestwick within a few hours of the crash. I flew up there and investigated matters on the spot, and I hope that no noble Lords will say now that I am not interested in safety. I went to the airfield at Prestwick as quickly as possible, and we set up this inquiry. When the Report was made we took a long time to study it. I would not have wished to take what is undoubtedly a serious step without full consideration. For the purposes of the record, may I say that the Report was received early in July and we sent it to the Stationery Office towards the end of September. It may be said that that is a considerable time. I was asked a question by the noble Marquess, Lord Reading, whose words, in so far as they were friendly, I certainly reciprocate in full measure, and in so far as they were offensive I will reduce the reciprocity by about 1 per cent. I was asked whether we had communicated with the Dutch Government. We gave them a copy of the Report early in the day, and the day before the Report was published we informed them officially through their Embassy here that we were issuing this dissenting note. That, I think, answers the noble Marquess's question.
LORD PAKENHAMWe gave them notice that we were issuing this statement. They had had the Report for a very long time. I have been told that I should have got in touch with Mr. McDonald. I did think about that for a long time. Maybe I was wrong in what I did; I am not going to be dogmatic about that point. I am going to make it plain where I am convinced that I was right and where I admit that I was wrong. Maybe, should I have got in touch with Mr. McDonald earlier. Some of your Lordships have criticised me about that, but I know you will believe me when I say that it seemed to me to be rather dangerous procedure to get in touch with Mr. McDonald perhaps to ask him to reconsider his opinion and to discuss the whole matter with me. I see now that far the better course for me to have followed would have been to consult the noble Viscount the Leader of the House or the Lord Chancellor. That would un- 1191 doubtedly have been the most sensible course.
If noble Lords say I ought to be wearing a whiter sheet, let me make it clear that while I admit I was wrong on these points of procedure, I make no such admission so far as the main issues are concerned. Believe me, I did not slip into this. I need not have done it. It could not conceivably bring me, or anyone concerned with me, any advantage. I did it because I felt it was right. I have been to great trouble, and though I know I have been honestly criticised by many people I did what I did because I felt it was a question of doing justice to two or more people who, I was quite sure and I am quite sure, were being unjustly criticised. That was the sole reason why I acted as I did. I expected that there would be a controversy, though I admit that I did not foresee the volume and dimension which that controversy would attain. But while, had I known of that, I might have proceeded in a different way, I would certainly have reached that conclusion and would have taken every step in my power to make sure that my expression of dissent was published.
Now I would like to touch on one or two minor points before dealing with the main issue. I was grateful to the noble Lord, Lord Clydesmuir, for the tone of his speech generally and for what he said. I agree that Prestwick must go forward. It is a magnificent airport, and we must do everything in our power to make sure that it flourishes more than ever in the future. As Lord Clydesmuir may know, a little while ago I had some very detailed and interesting discussions about Prestwick with leading representatives of Scotland. I think we all understood one another fairly well at the end. The noble Lord touched on Recommendation (5) of the Report, which recommends:
That mechanical recording of R/T messages between ground and aircraft be installed at Prestwick Airport.I can inform the noble Lord that this is already the policy of my Ministry. Automatic recorders are being installed at a number of Ministry airfields. The process, however, has been delayed owing of the non-availability of British equipment. But undoubtedly the recommendation will be carried out, and I hope 1192 the noble Lord's mind will be at rest on that score.I come now to the main issue, having once again to express regret for my mistake on a question of procedure. We have heard learned arguments upon the question of my right to do what I did. Naturally, before making the statement I made to-day I took the highest legal advice in the land, and I do not wish to add to what I have said about the legal position. There is, however, one aspect which the noble Marquess, Lord Reading, stressed a good deal in a speech which won acceptance amongst some of his supporters. The noble Marquess was very frank about my right to differ upon any point of administrative action—I think that was the expression he used. He takes the recommendations in the Report as distinct from the conclusion, and says that of course nobody is going to insist that the Minister should agree with Mr. McDonald about those recommendations affecting the whole procedure of his Department. But I would ask your Lordships to consider. What is it except administrative action if you retain officers in positions which the Report clearly indicates they are unfit to hold? Is that an administrative decision or not? I will not mention the names of individuals because I do not wish to call further attention to those gentlemen, who are doing such good work.
We were told there was a grave lack of supervision in the meteorological office. I had to take action upon the Report. I could not retain a man, if I agreed with the Report, even though he had been in a post for nine years; I had either to pension him off or find him other work, but I could not leave him there. I was faced at once with the choice: Do I retain these men or remove them? I had to make that decision. Nobody is going to tell me that in making that decision I have to accept without very prolonged thought the advice of Mr. McDonald. He is a gentleman of the highest legal qualifications, from whom I am very sorry to differ, but he has not the last word as to who is to be employed in my Department. I must make that plain. Administrative decisions affecting individuals arise at once on a Report of this kind, and I hope noble Lords will address themselves to that fact. If they press the point that I must accept the Re- 1193 port in its conclusions, they would in fact be insisting that I should swallow almost automatically the clear indications that these gentlemen were unfit to hold their jobs and should be got rid of. I know the House is fair, and that is the straightforward issue before it.
My noble friend, Lord Crook, in a speech that along with others from this side filled me with great pleasure, said that the noble Viscount, Lord Swinton, a very fair and famous administrator, would no doubt not have accepted the instructions of Mr. McDonald on a point of this kind. If one is not going to get rid of these men one has to say so. We could leave the gentlemen there for some weeks and months, and then somebody discovers that perhaps the Report has not been acted upon, or, God forbid! another accident has taken place and the same gentlemen are still there. Is that fair to anybody? Is that a possible course? It is clear that if one dissents from something which is bound to give rise to a great deal of publicity, one must say so, and say so at the earliest possible moment. In the circumstances a Question in Parliament would have been the right course. I say that now, as I said it at the beginning of my speech. Though I do not want to make any further excuses, it was perhaps unfortunate that I was on tour during the time the Report came out. I know that the noble Viscount was anxious to put a Question on the Order Paper during the first days, and if that had been done I honestly believe that this whole business would not have arisen. That is a statement of fact which I ask your Lordships to believe.
The noble Viscount, Lord Swinton, has asked for my resignation and the noble Viscount, Lord Simon, implied I think a considerable measure of assent with that view. I should be inclined to agree with the noble Viscount, Lord Simon, that in forming any kind of authoritative opinion on this matter one should read the evidence. The noble and learned Viscount seemed to suggest he was the only person here besides myself who had read the evidence. Having heard the noble Viscount, Lord Swinton, I am willing to believe that what the noble Viscount, Lord Simon, said was true. The noble Viscount said that Lord Swinton had not read a word of it.
§ VISCOUNT SIMONI did not say that.
LORD PAKENHAMThe noble Viscount, who I understand is in the closest touch with Lord Swinton, was of the opinion that no one had read the evidence besides him and myself.
§ VISCOUNT SIMONI think I said, "all the evidence." The fact is that I asked Mr. McDonald, if he saw no objection, to send me the evidence, which was in some nine volumes, and I informed the noble Lord that I had received it. I have studied it and I called the attention of my noble friend, Lord Swinton, and other noble Lords to passages in the evidence, as one would expect.
LORD PAKENHAMI only wish the noble and learned Viscount had also called the attention of Lord Swinton to a few more passages. I was going to suggest that the noble Viscount, Lord Swinton, had not read the evidence and that the noble and learned Viscount, Lord Simon, had not read the Report. Between them they had the makings of a speech, but they have in fact produced two different speeches, because the noble Viscount, Lord Swinton—
§ VISCOUNT SWINTONAs the noble Lord has challenged me perhaps he will allow me to reply. I have not read the evidence, and the case against the noble Lord was not based on my having read the evidence. I do not claim to set myself up as a court of appeal on a finding of fact. My challenge is that the noble Lord ought not to do that.
LORD PAKENHAMI am glad that the noble Viscount ruled himself out as an authority on the merits of this case, because I did not want to deal with him at length. He has admitted that he is not in a position to judge the issue, in spite of having pleaded his case on the terms in which it was pleaded in the Report. In fact, he read large chunks of the Report without even a very intelligible comment, but he did hold us with a long piece of public reading and quoted many things that Mr. McDonald says. The point I am making is that so far as the technical issue goes I have replied in my statement to the case pleaded by Mr. McDonald, which is the case outlined by the noble Viscount, Lord Swinton. But the noble Viscount, Lord Simon—and I say it a little ironically—gave no evidence of having read the Report or the con- 1195 clusion. He has hold of the wrong end of the stick altogether.
§ VISCOUNT SIMONI assure the noble Lord I have read every word of the Report several times, and I am not conscious of saying anything which is contradictory to the Report.
LORD PAKENHAMI repeat, the noble Viscount has the wrong end of the stick completely and I would like to explain what I mean. The noble Viscount pooh-poohs my statement. He says that here is the Minister talking about 11.06 and 11.08 or 23.06 and 23.08—whatever it is, it does not matter; that has nothing to do with it. The noble Viscount has treated my whole technical reply to Mr. McDonald as worthless, because it is only a question of time. He has not understood Mr. McDonald's case. He has not begun to understand Mr. McDonald's case—not even the rudiments of it. I am anxious to explain it, but I hardly expected I would have to do so to one of the most famous lawyers this country has ever known.
Let me turn to the conclusion of the Report. The passage to which we are taking exception referred to the failure of the meteorological staff at Prestwick to enforce obedience to the order that reports of weather deterioration should be given in plain language to the air traffic control officer, and the latter's failure to pass on the information which he had received in code resulting in the omission of the words "deterioration" and "deteriorating" from the verbal radio messages to the aircraft. Has the noble and learned Viscount, having read the whole of the evidence, even considered what period is being referred to there?
If we go back to paragraph 102, for instance (I am sorry to have to deal with the noble and learned Viscount so severely, but he has not dealt with me very lightly, so it is all cut-and-thrust) we are told there:
The absence of this information was due to the failure of the meteorological observer to include this item in either of the reports he sent 4o the Flying Control Officer at or just after 23.00 hours,"—that is roughly at eleven o'clock. That is Mr. McDonald's case. He says that we did not send sufficient information just after eleven o'clock. He is not laying stress on anything that occurred, and is 1196 not suggesting that there was any individual failure, after eight minutes past eleven—none at all during the last twenty-four minutes. I hope that the House is following me here. I feel there are some noble Lords who have not followed that part of my statement. Mr. McDonald does not suggest that there was any individual failure after eight minutes past eleven.I come out again in defence of individual men, because they, individuals, have been criticised, and the criticisms relate to this earlier period. I feel that the noble and learned Viscount (I say this with deep respect) should discover from Mr. McDonald—I have no doubt he is in touch with him and, heaven knows, I am not complaining about that—
§ VISCOUNT SIMONI have not communicated with him otherwise.
LORD PAKENHAMAs I say, it is a natural thing to do. Why should Mr. McDonald not have his case stated by a great advocate, if I am allowed to state mine? As I say, if the noble and learned Viscount would communicate with Mr. McDonald again, and ask him whether he could endorse his, the noble Viscount's, speech to-day, I feel that an embarrassing little bit of correspondence would ensue. But I leave that with the House. No, my Lords. As I said in the statement—and naturally I took great thought before making it, as I did before making the decision—we are satisfied that there was no breach of duty in the way Mr. McDonald suggests during the period which came to an end at eight minutes past eleven. He does not suggest any individual failure in the last twenty-four minutes. I said that in my statement, and I was a little surprised that the noble and learned Viscount failed to attend to that line of argument.
The noble Marquess, Lord Reading, struck a rather different note and said: "Well, perhaps no individuals were to blame, but, all the same, ought not someone to have done something; surely, somehow, this message should have got through?" That is how I understood the noble Marquess's remarks. I am not going to say that the system then working was perfect; and it has since been modified in certain respects. I am quite ready—perhaps it would be simplest as a Written Answer—to state the new modifications that have been introduced. But that is a different thing from saying, as Mr. 1197 McDonald has said in public, that certain officers ought to be dismissed. I am rebutting the criticisms of certain individuals, aNd I think many members of this House have great sympathy with me in that. I cannot help being grateful to many members of this House to-day, not only those who have spoken from this side but also other members who might have been expected to applaud, but remained silent, when the noble Viscount called for my removal. I shall always remember that.
The noble Marquess, Lord Reading, asked: "Is the system perfect?" I would say that there have been various developments, and in the latest instruction which has just been issued there is one change which I think will interest your Lordships. I hope the House will not jump to conclusions, and assume that it was issued in advance of this debate especially so that I could announce the change. It is contained in a technical document which followed discussions that have continued since long before this accident. There is one point which I would mention now—namely, that in future a special deterioriation report, or an intermediate deterioration report, between the ordinary half-hour messages will be sent out if there is a change in amount from one half or less to more than one half, for any cloud layer observable below 2,000 ft., and vice versa.
§ VISCOUNT SIMONIn clear language?
§ VISCOUNT SIMONThat was not done at the time of this accident?
LORD PAKENHAMThat rule was not in force; it has only just been announced. But that is a feature of the system; it is always improving. I must repeat what I said in the statement. I know from personal experience that it is not easy to follow a complicated statement if it is read out by the Minister at the beginning of business. When noble Lords see what I say there they will observe that I have really two strong reasons for this attitude on the technical issue. On the one hand, there was no individual failure; and, on the other, so far as the sytem is concerned, at that time we were operating a system which was internationally recommended. But 1198 I do not say that these things should not be improved all the time. I hope nobody will suggest that I am saying it was all perfect that night, and that what happened that night will always happen again, to prove that I was not mistaken. I do not accept (it is not certain that no legal proceedings will follow) any legal responsibility. What I am saying is that this system has been improved since, is being improved, and will continue to be improved as time goes on.
I do not think I need say much more. The noble and learned Viscount, Lord Simon, was good enough to give me notice of a question, to which I promised a reply, about the statutory limitations. After taking advice, would remind him that the matter is one for decision by the Attorney-General. I can assure him that I have consulted the Attorney-General, and he is giving the matter his close attention. The Attorney-General says that, while it would be unusual to give an absolute undertaking in advance, he has no reason to think that in this context he would want to plead the Statute, provided, of course, that proceedings were brought with reasonable expedition. I think that goes as far as anything short of an absolute promise could go.
I would say one last word to the noble and learned Viscount. It is not on the personal issue; that, I think, has now been disposed of. He has said that I have shaken confidence. I wonder! That has not been my experience in the aviation world during the last week. I do not want to make too much of that, but certainly among the airport staffs—not just at Prestwick, and not in the case of one or two individuals, but at other airports and other places—there has been great relief (and I say it as one who perhaps should not) that the Minister was ready to go through all this to make sure that, in his opinion, no injustice was done to the men doing this very difficult and onerous task. Therefore, I will not take it from any noble Lord, however great an airman he be, and however ignorant a flier I am likely to remain all my days, that the aviation world is against me. That is not what I have found in the last week. I am bound to express my gratitude from this place to all those who have written to me and got into touch with me. I include among those the people in the trade unions who are closely 1199 associated with civil aviation in many ways. I am glad we have had this out. So far as I am concerned, my feelings towards all noble Lords present remain just as they were, except that I feel perhaps even more warmly to those who have been kind enough to speak on my behalf.