HL Deb 05 March 2001 vol 623 cc87-109

7.33 p.m.

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

The noble Lord said: My Lords, I apologise for the apparent confusion about the wording of the Motion, which is of course as it appears on the Order Paper and not on the speakers' list. However, I hope that my intention is clear. In the words of the Companion, I am asking the House to agree to this resolution as a formal expression of the decision of the House that an ad hoc Select Committee should be set up without delay.

Perhaps I may begin by making clear at once that this Motion does not imply criticism of Ministers either of this Government or of their predecessors. The accident to which the Motion refers took place under a Conservative government. A succession of Ministers, both of that Government and of the present one, have dealt with it in a perfectly normal way on advice from their officials in the Ministry of Defence. Of course, official advice to Ministers is normally a confidential matter. Incidentally, I would be the first to agree that service discipline should normally be a matter for the services alone. However, as will be obvious as this story unfolds, there is absolutely nothing normal about this sequence of events.

It began at approximately twenty minutes to six on the evening of 2nd June 1994 when Chinook helicopter ZD 576 took off from the Royal Air Force station at Aldergrove in Northern Ireland. The crew of the aircraft were two experienced special forces officers Flight-Lieutenant Tapper, the captain, and Flight-Lieutenant Cook, the co-pilot—and two Royal Air Force crewmen. There were 25 civilian and military passengers, most belonging to the Northern Ireland intelligence community. Their destination was Fort George in Scotland. However, at about 6 p.m. the helicopter crashed on the Mull of Kintyre.

That is all that is known as fact because all four crew and all 25 passengers were killed, and the aircraft carried no accident data recorder or cockpit voice recorder—the items known popularly as black boxes. Therefore, anything else about the incident is speculation or subjective judgment, except one thing. There is one other fact which is of vital importance and which I ask your Lordships to bear in mind throughout this brief account. It is as follows. At the time of the accident, Royal Air Force regulations contained the following sentence: Only in cases in which there is absolutely no doubt whatsoever should deceased aircrew be found negligent". I repeat: "absolutely no doubt whatsoever".

Incidentally, since the crash of that helicopter, that has been altered and boards of inquiry are no longer able to make any apportionment of blame. Noble Lords may regard that change in RAF regulations as significant.

On 3rd June, the following day, a Royal Air Force board of inquiry assembled to inquire into the accident by order of Air Vice Marshal Day, the Air Officer Commanding No. 1 Group—an officer who will figure prominently in this story. After examining more than 20 witnesses, the board of inquiry came to the conclusion that on the available evidence it would be incorrect to criticise either of the pilots for human failings.

That finding was, on the orders of Air Vice Marshal Day, reviewed by two senior RAF officers—the relevant station commanders at Odiham and Aldergrove. Group Captain Crawford at Odiham concluded that, in assessing human failings, the evidence is insufficient to be specific". Group Captain Wedge at Aldergrove commented that, the exact train of events can never be determined with absolute certainty". In other words, neither the board of inquiry nor the two senior reviewing officers was able to say that there was no doubt whatever about the causes of the accident.

However, when the proceedings reached Air Vice Marshal Day, he declined to accept the findings of the board of inquiry which he had convened. He remarked: It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered high ground". He made that remark at the beginning of his comments. Nevertheless, on the same evidence that was available to the original board of inquiry, he concluded that both Flight-Lieutenant Tapper and Flight-Lieutenant Cook were, negligent to a gross degree".

The Air Officer Commanding-in-Chief Strike Command, Sir William Wratten, agreed with Air Vice Marshal Day, although he began his summing up with another significant sentence. He said: Without the irrefutable evidence which is provided by an ADR and a CVR— in other words, the two black boxes— there is inevitably a degree of speculation as to the precise detail of the sequence of events in the minutes and seconds immediately prior to impact". To me, if language means anything at all, "a degree of speculation" implies an element of doubt.

Those conclusions were based on the subjective judgments that these two senior Royal Air Force officers were quite entitled to reach. In their position—they were reviewing the board of inquiry—they were entitled to reach those conclusions. However, subsequent developments suggest that there is a distinct possibility that they may have reached wrong conclusions, especially given the requirement that there should be absolutely no doubt whatever about the causes of the accident.

The first of those developments was the setting up in Scotland of a fatal accident inquiry in 1996 under the direction of Sir Stephen Young, an experienced Scottish judge. After taking 16 days of evidence and taking into account all the evidence that was available to the RAF board of inquiry, Sir Stephen dismissed the air marshals' findings and concluded that the cause of the accident could not be established.

Meanwhile, the families of the dead pilots had mounted a campaign to clear the pilots' names, and in April last year three senior members of the flight operations group of the Royal Aeronautical Society, Captains MacDonald, Hadlow and Kohn, compiled a detailed report—an independent report—on the crash. Those three experienced aviation experts, one of whom, incidentally, was a former service helicopter pilot, concluded that the case was, certainly not a case in which there was absolutely no doubt whatsoever". They went on to say that this episode, must inevitably involve the jealously guarded honour of the armed forces". That is a very serious statement.

In July last year, the noble Lord, Lord Murray, a former Lord Advocate, examined all of the evidence independently and concluded that the two air marshals may have misdirected themselves in overruling the findings of the original board of inquiry and that in that case their verdict could not stand and should be revoked or at least suspended pending a reopened inquiry.

In November last year, the Public Accounts Committee, an influential all-party committee in the other place, published its 45th report. On the subject of the crash it concluded: We do not understand how, given the absence of the definitive information that black boxes could have provided, the Board of Inquiry and the Department can have no doubt whatsoever that crew negligence caused ZD 576 to crash". Incidentally, the report went on to comment that the preferences of the Ministry of Defence for the results of its own proceedings over those of the fatal accident inquiry constituted "unwarrantable arrogance". The Ministry of Defence has not yet replied to that report.

Finally, Sir Malcolm Rifkind, who was Secretary of State for Defence at the time of the accident and who accepted the verdict of the air marshals, said recently that if he had known at the time what he knows now, he would never have accepted the verdict.

What is known now that was not known then? A great deal. There have been serious doubts about some of the computer software equipment on board the aircraft. I will not weary your Lordships with all of the technological details except to say those problems were serious enough to cause flight trials on the Mk II helicopter—the type involved in the crash—to be suspended on 1st June 1994, which was the day before the crash. Various other events have come to light since 1994, but this is neither the time nor place to catalogue them in detail. They will certainly emerge in evidence before any Select Committee that your Lordships may decide to set up. Meanwhile, throughout the whole of that period, numerous approaches have been made to the Ministry of Defence asking it to review the verdict of gross negligence in the light of all of the evidence, and either to set it aside or to reopen the inquiry. Every approach has been rejected, usually on the pretext that "there is no new evidence". All the evidence is already available—it is the interpretation of that evidence that is in question.

My aim today is to remind your Lordships once again—it may become boring but it is necessary to say this—of the requirement that is set out clearly in the RAF regulations at that time that deceased aircrew should not be found guilty of negligence unless there was no possible doubt whatever about the causes of an accident; and to point out that a number of distinguished and experienced people, including judges, aviation and computer experts, former Ministers and politicians of all parties have the gravest doubts. It seems to me that only two air marshals and their colleagues in the Ministry of Defence apparently have no doubt whatever, and it is on their subjective judgment that two outstanding special forces pilots have been found guilty of making a joint decision—the decision must have been made by both of the pilots—to risk their own lives and those of their passengers and have been deemed to be guilty of what the noble and learned Lord, Lord Brightman, described in your Lordships' House on 2nd June 1998 as the exact equivalent to manslaughter—and that without any legal representation and no right of appeal.

It is for that reason that I seek the establishment by the Liaison Committee of this House of an ad hoc Select Committee. Of course, if the Minister, when she replies, would undertake on behalf of the Ministry of Defence to reopen the inquiry, I would at once withdraw my Motion. If, however, she cannot do so, I shall not be surprised. I should have much sympathy with her because she will be speaking from the same official brief that has been provided to every Minister, including the Prime Minister, who has had to answer questions on this matter.

For my part, I can give the following undertaking. If a Select Committee of your Lordships' House, having examined all the evidence, concludes that the verdict of the air marshals is fair and just, that will be the end of the matter so far as I and the families of the pilots are concerned. I have their permission to say that. On the other hand, if the Select Committee that is set up finds that the verdict was unsafe and unsound, we expect the air marshals and the Ministry of Defence to accept that decision. That would be no reflection on the integrity or professional reputation of any of the RAF officers concerned. Anyone can make a mistake in all sincerity and with the best intentions.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean)

My Lords, before the noble Lord concludes, I inform your Lordships that when I respond to the debate on behalf of the Government, I shall make it clear that I shall not ask your Lordships to oppose the Motion of the noble Lord, Lord Chalfont.

Lord Chalfont

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

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

7.48 p.m.

Lord Eden of Winton

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

Like all noble Lords who have followed this matter, I have studied the speeches, debates and ministerial answers in both Houses and the reports and press comment. That has left me with a profound sense of unease. I understand the position that the Minister adopted in previous replies to debates of this nature and that adopted by the distinguished Air Marshals, Sir William Wratten and Sir John Day.

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

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

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

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

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

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

Given those facts, there are good grounds for a further and wholly objective examination of that tragic incident, including why it was that the day before the crash on the Mull of Kintyre the aeroplane and armament research establishment at Boscombe Down, the Ministry of Defence's own airworthiness assessors, had grounded non-operational Chinooks. It was the Air Marshal Sir William Wratten himself who overruled the Boscombe Down decision commenting that the grounding did, nothing to engender air crew confidence in the aircraft". It certainly did not. Sadly, it would seem that at that time, in 1994, some lack of confidence was more than justified.

So if the finding of negligence cannot be set aside to end the matter there, then there are still too many questions to which no satisfactory answers have yet been given. As Sir William Wratten wrote in the Sunday Times on 18th June last year: Why they [that is, the two pilots] elected to ignore the safe options to them and pursue the one imposing the ultimate danger, we shall never know". Why indeed? We must try to find out and the inquiry proposed by the noble Lord will help us to do that.

7.55 p.m.

Lord Craig of Radley

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

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

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

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

In this House four noble Lords—the noble Lord, Lord Henley, the noble Earl, Lord Howe, the noble Lord, Lord Gilbert and the Minister—have stood at that Government Dispatch Box and have given their support for the integrity of the board and its findings. Six Ministry of Defence Ministers have stood at the Government Dispatch Box in the other place and have equally strongly given their support. Do we ignore them all? Of course, they will have been briefed by the senior members of the board and by the Chief of Air Staff. But they will also have had the advantage of the most thorough consideration of the board's findings by their civilian secretariats. They will have had the opportunity to study the board's report far more thoroughly than has any other noble Lord who has ever spoken on this topic. That combination of 10 well-briefed senior Members of both Houses equals, if not betters, any ad hoc Select Committee in examining and understanding all the circumstances of that tragic accident.

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

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

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

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

8 p.m.

Lord Jacobs

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

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

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

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

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

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

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

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

I ask your Lordships to consider the evidence of just one of the reviewing officers, namely Group Captain P A Crawford, the Station Commander of RAF Odiham. I shall begin with his conclusion. He stated: There is no indication of a major technical malfunction. Flight Lieutenant Tapper as captain of an aircraft in peace time had an overriding duty to ensure the safety of the aircraft, its crew and passengers. Whilst there may arguably be some mitigating circumstances I am regrettably drawn to the conclusion that he failed in his duty". Bearing in mind that there must be "absolutely no doubt whatsoever", let us consider some of the evidence given in Group Captain Crawford's report. Regarding the attempted overflying of the mull, he states that the pilots would have had to use a speed and power combination that is unrecognisable for a Chinook; that such actions would go against all the crew's instincts and training; and would be the antithesis of the professionalism and careful planning that had gone before. He goes on to say that, after consulting other senior Chinook operators, he found the suggestion that the crew believed that they could overfly the mull incredible.

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

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

Regarding technical malfunctions, he stated that at this stage of the Chinook MK 2's service, spurious engine failure captions lasting, on average, seven to eight seconds, were an increasingly frequent occurrence. He goes on to say that they are now well understood, but at the time they were not. Had such an indication occurred, it would have caused the crew considerable concern, particularly as they were over the water with no obvious area for an emergency landing. Such a warning would have required an urgent and very careful check of engine instruments and FRCs. FRCs are flight reference cards which may be used in emergencies. At the time of the accident another witness, Squadron Leader David Thomas Morgan, was asked: What unforeseen malfunctions have occurred on the Chinook HC2 since its introduction to service? He replied: The unforeseen malfunctions on the Chinook HC2 of a flight critical nature have mainly been associated with the engine control system FADEC. They have resulted in undemanded engine shutdown, engine run up, spurious engine failure captions and misleading and confusing cockpit engine indications". Finally, he was asked: Were these malfunctions covered by drills in the Chinook HC2 Flight Reference Cards (FRC)? He replied: No, the Chinook HC2 FRC were based primarily on the Chinook D model which is not fitted with FADEC"— in other words, an earlier model— Drills relating to FADEC were based on the best information available on how the system would respond during certain malfunctions". Finally, with regard to human failings, it is my understanding that gross negligence must come within that description, so it is of the utmost importance to pay regard to what Group Captain Crawford had to say on this subject. He stated: in assessing human failings the evidence is insufficient to be specific". I do not know whether your Lordships share my concern, but Group Captain Crawford's findings of gross negligence by the two pilots, for which there has to be "absolutely no doubt whatsoever", does not, in my opinion, fit the serious expressions of doubt set out in his report.

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

8.10 p.m.

Lord Ackner

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

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

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

On that test, there must therefore be absolute certainty. Only in such very limited circumstances is there jurisdiction to find negligence. Here is the very limited power which the Air Marshals had. Only where there was absolute certainty could they make that finding. However, there is no need for us to adopt the fascinating task of analysing those words because the Air Marshals never got near to satisfying the ordinary criminal onus of proof.

Perhaps I may quote from the report and the words of Air Vice-Marshal Day, which I recently came by through the courtesy of the noble Lord, Lord Jacobs. These are the vital words of his decision: The Board and the Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation, in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules". I stress the following words: In my judgement, none of the possible factors and scenarios are so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight". Clearly, it is being said that none of the factors or scenarios is of sufficient strength to provide a likely explanation. That does two things: first, it puts the onus upon the deceased, which is wrong; and, secondly, it deals in probabilities. It does not deal with reasonable doubt and it does not deal with the certainty which the words of the manual require.

Later in his observations the Air Marshal stated: Therefore, while aware of the difficulty of attributing negligence to deceased aircrew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree". The phrase "while aware of the difficulty" is a clear understatement of the task that faced him. The difficulty of finding certainty is not a difficulty; I respectfully submit that it is an impossibility.

Towards the end of the observations, the Air Vice-Marshal stated: It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered high ground". If it is "incomprehensible", then he does not understand how the accident happened. And if he does not understand how, he is not in a position to exercise the very limited jurisdiction which has been given to him. Those are my submissions.

It is interesting to note that when the matter first came before this House on 22nd May 1997 I raised the difficulty in the debate. I said: Via the Library, I managed to achieve a summary of what was in the full report. I was told that I could not see the full report because it was not available to the public. I noted that the … very heavy onus is not referred to at all. The summary states: 'The Inquiry therefore concluded that the cause of the accident was that the two pilots had wrongly continued to fly towards the high ground"'. I concluded my intervention by saying: I hope that when replying the Minister will devote some time to demonstrate to us to what extent the very high test in regard to the onus of proof is reflected in the decisions and is reflected, in particular, in the views of the two very senior officers who, on review, appear to have departed quite clearly from what was the initial finding".—[Official Report, 22/5/97; cols. 552–53.] That hope was expressed in vain.

Being obstinate by nature, I returned to the charge in June 1998. On that occasion noble Lords did not hold a debate but considered a Starred Question. On that occasion noble Lords had the advantage of a contribution from the then Minister, the noble Lord, Lord Gilbert. On that occasion I asked the Minister: My Lords, is the Minister aware that the relevant RAF regulation states that in only those cases in which there is absolutely no doubt should the deceased air crew be found negligent? Is the Minister satisfied that that very heavy onus was borne in mind by those who found negligence; or is a possible explanation that they reached their conclusion on the basis that it was highly probable that it was negligence".—[Official Report, 02/6/98; col. 179.] The noble Lord, Lord Gilbert, replied: My Lords, I can assure the noble and learned Lord that precisely those considerations were in the minds of the distinguished Air Force officers who came to the painful conclusion to which they felt compelled to come". In what I have read out I cannot find anything to suggest that those precise, considerations were in the minds of the distinguished Air Force officers". Accordingly, I tabled a Motion to ask that the decision be set aside, but my noble friend Lord Chalfont beat me to it and, accordingly, I awaited this debate. I firmly support my noble friend. To exercise power without having it is an abuse of power, and that is what has happened in this case. I strongly support my noble friend's application.

8.23 p.m.

Baroness Park of Monmouth

My Lords, in supporting the noble Lord, Lord Chalfont, as I have done on many earlier occasions, this time I shall concentrate on only one issue which I have regarded as central ever since I raised this matter in May 1997. I refer to the vital need to have cockpit voice and flight data recorders—black boxes—in all Chinooks. Had there been one in ZD576, two experienced and splendid young pilots would not have been held grossly negligent. I say that with confidence because over the past four years the mounting evidence pointing to a technical fault has become impossible to set aside without further consideration. A black box would have recovered that evidence.

When I raised this matter in May 1997 the then Minister, the noble Lord, Lord Gilbert, told the House that cockpit voice and flight data recorders were being installed in all Chinooks. I asked again in November 1999 and the response from his successor was that it was a matter of regret that the programme was somewhat behind but it was under way. Progress has been lamentably slow. Flight trials of a new version of the black box, Humus, had been completed by February 2000 and four of the 40 aircraft involved had been so equipped by June 2000. In October the Ministry hoped to complete the programme by August 2001, but then the noble Baroness, Lady Symons, who has been scrupulous in keeping me informed, wrote to say that an urgent operational requirement had arisen which required the same facilities as had been earmarked for Humus. Therefore, although one more Chinook would be modified by December 2000, the other 36 would have to wait until early 2002.

Surely, only a serious shortage of resources and perhaps skills can explain, though not justify, the continued delay, which is not only dangerous but leaves the RAF open to further unexplained ZD576 incidents. None of the Mark 2 Chinooks recently used in Sierra Leone and Kosovo and currently in Northern Ireland has been fitted with a black box yet they are operating in potentially dangerous areas. According to an Answer that I received in October 2000, the Mark 2a was procured in 1995 at a unit cost of 20.2 million US dollars. That excluded the engine, which was provided by the MoD from existing stocks. The replacement cost of a Chinook engine as of October 2000 was 2.1 million US dollars. I do not know what it costs to train a pilot, but it will be a significant sum. It is impossible to cost the damage to morale which must result from a verdict of gross negligence passed on the pilots of Chinook ZD576 on the grounds that no other explanation can be found. Each black box costs £326,000. Set against the other figures that I have quoted, surely the economics speak for themselves.

I recognise that only the services can judge what priority they must give when two operational requirements conflict. Presumably, lack of manpower and money, not least a shortage of operational aircraft, means that aircraft cannot be taken out of service to undergo modification. Nevertheless, I hope that the Minister accepts that urgent priority should be given to the completion of the black box programme for all 40 aircraft. It is pitiful that four years after we were told it was being done nearly the whole fleet remains vulnerable. We can surely not afford to risk another ZD576. We owe it to those two pilots, and to all their fellows, that in future everything should be done to enable the true cause of an accident to be established, if that is at all possible.

I hope that the admirable Motion of the noble Lord, Lord Chalfont, will be accepted and that a Select Committee will be set up. It is encouraging that the Minister has indicated her willingness to see the Motion passed. I can think of few subjects more worthy of a Select Committee's consideration than this issue which touches the reputation of the armed services and our care for those who serve in them.

8.28 p.m.

Lord Brightman

My Lords, I have always felt uneasy about the finding of gross negligence. As has been said time and time again, to cause death by gross negligence is the crime of manslaughter. The evidence of gross negligence on the part of the pilots is wholly circumstantial; there is no direct evidence. Gross negligence can only be an inference from the surrounding circumstances. Therefore, the question is whether it is right to make a finding equivalent to the crime of manslaughter when the accused are unable to tell their story. I do not believe that it is just, unless the facts are so compelling that no other cause is a conceivable possibility. Examination by a Select Committee would help to answer that question.

8.29 p.m.

Lord Fitt

My Lords, I rise simply to say that yesterday afternoon I looked over at the lighthouse on the Mull of Kintyre from my little cottage in Country Antrim. On a number of occasions I have gone out of my way to visit the crash site and to see the memorial stone erected there. On each visit I have spoken to people who live in the surrounding area. I have spoken repeatedly to the lighthouse keeper, who is still there. I see the lighthouse flashing into my home.

Every time I have gone there I have become more and more convinced—not only from listening to those who live in the vicinity, the people and the policemen who were there immediately after the terrible tragedy, but from seeing not only yesterday, the day before and the day before that, and almost every weekend and every day when the House is in recess, how the clouds and the fog can create different impressions almost within minutes. At 10 minutes past three in the afternoon I have seen the Mull of Kintyre clear and visible; at 20 minutes past three I have seen it completely blanked out by fog and cloud.

There may have been a malfunction in the helicopter, but the fact that weather conditions can change from minute to minute should be taken into consideration as well. Even if there were no malfunctions in the helicopter, I would agree that the pilots could have been deflected from their flight by the weather variations at that time.

This House has on many occasions set up Select Committees. They have come up with conclusions that have been a credit to this House. I wish deeply to thank the Minister for her indication this evening that she will not oppose the request that has been made. I am quite certain that the findings of a Select Committee will do a great deal completely to exonerate those two young pilots.

I knew many of the 28 policemen who were killed on that flight. I believe that it was totally and absolutely wrong for the Ministry of Defence or anyone else to lay the blame for their deaths on the shoulders of those two young pilots.

Again I thank the Minister for not opposing the request. I believe that this is a great step forward in the campaign supported most notably by the noble Lord, Lord Chalfont. The noble Lord has shown great tenacity in keeping this case in the public eye. I have no doubt that when and if the Select Committee reaches a conclusion, it will be to exonerate those two young pilots.

8.32 p.m.

Lord Wallace of Saltaire

My Lords, I too must not detain the House. I apologise that my name is not on the list. I was not sure that I could be present. From these Benches, I also want to welcome the Minister's acceptance of the need for a further inquiry. There clearly is reasonable doubt here, and that justifies further inquiry.

I simply add that the argument that this House does not have the resources for a further Select Committee is the weakest argument against one. If there is an argument for another Select Committee, then the resources need to be provided. Clearly, there is room for some further discussion as to the exact nature of the inquiry for which this Motion calls. But in this House, which is remarkably inexpensive for a second Chamber, that should not be held as a reason not to have one. I very much hope, therefore, that we will move to a Select Committee or another inquiry which will satisfy all sides that justice has been seen to be done.

8.33 p.m.

Earl Attlee

My Lords, I am grateful to the noble Lord, Lord Chalfont, for returning to this issue once again, but now applying rather more pressure on the Government. In responding, I remind the House that I have a peripheral interest.

I can see the advantage of taking this business during the dinner hour. However, with the importance of the Motion, I am constrained to respond fully. I had not planned for a timed debate and neither did certain other noble Lords.

We have had a good debate, but obviously it has not been enjoyable for anyone either inside or outside your Lordships' House.

This is one of the most difficult issues that I have had to deal with during my short time in your Lordships' House. First, there is the issue of whether we should become involved in reviewing the decision of the Armed Forces' disciplinary machinery. Our Armed Forces are under full political and parliamentary control. They are proud of that. Indeed, they are active in preaching the need for that overseas. Noble Lords will be aware that we shall shortly be debating the armed forces Bill—the quinquennial review.

However, it is clear that we must exercise great caution before delving too deeply into our parliamentary tool kit, and especially as some of the tools are so sharp. To question the finding of a military inquiry is a serious matter. On the other hand, there are few noble Lords better placed to decide to do so than the noble Lord, Lord Chalfont. He has pursued the matter with measured and responsible steps and with a suitable period between each one. It would clearly be preferable for the inquiry to be opened up again by the MoD in response to concerns from Parliament. So I have no difficulty with the noble Lord's course of action, especially since he has amended his Motion.

The noble Lord has implied no criticism of either Ministers or the staff and neither do I. The second problem for me is whether or not there is a problem to be addressed. I will not repeat all the arguments, technical or otherwise, that we have heard tonight. The Ministers, in both this and the previous administration, have relied on the principal argument that the two pilots broke the visual flying rules and were therefore grossly negligent. I am no aviator but I can understand the basis of the rules. What I cannot understand is why both pilots would simultaneously take leave of their senses and break VFR when they were within a minute or two's flying time from the Mull and flying far too low.

Furthermore, we have no evidence that there were not free and frank discussions in the cockpit as to what they were doing. If there was serious dissent from one of the pilots, how could he be held to be grossly negligent? That point concerns me greatly. I hope that the Minister can offer a reply to it.

I have another worry. We have heard tonight about possible serious faults with the aircraft's avionics. There is always the possibility that the aircraft suddenly developed a mind of its own and the pilots, while valiantly trying to overcome that problem, broke VFR and then crashed into the Mull. Nevertheless, the pilots are still found guilty of gross negligence.

The third problem for me is that a review might still find that the pilots were guilty of gross negligence. But I am sure that the noble Lord, Lord Chalfont, has carefully considered that possibility and advised the relatives accordingly.

I have concerns regarding the RAF inquiry procedures. I am worried that some personalities and organisations are, possibly of necessity, put in an invidious position. But I am not sure that it is helpful to name names. They have to determine the technical standards against which an aircraft will be procured; whether it meets those standards; whether it is otherwise acceptable; and, then, if something goes wrong, whether there was an equipment failure.

As for the issue of data recording equipment, there is a balance to be struck between cost and security issues on one hand and the risk of not knowing exactly what went wrong, in the event of an accident, on the other. It is a little surprising not to have had a full fit of such equipment from the start. Apart from anything else, it would be a useful deterrent against unauthorised flying practices. However, having voluntarily taken the risk of having a lack of information, I believe that it is questionable to find the pilots guilty of gross negligence in these tragic circumstances.

Some noble Lords have raised the issue of why so many vital personnel were carried on one aircraft. Using that well-developed art called hindsight, it might appear to have been unwise, but I doubt very much that it was a factor in the accident.

The last time we debated this matter, the view taken by the right honourable Sir Malcolm Rifkind was raised. I spoke to Sir Malcolm this morning. He was grateful for the opportunity that he had been given to refresh his memory at MoD and spent half a day doing so. He is adamant that he was not aware of the technical malfunctions of Chinook when he was involved in this matter as Secretary of State. He was told that they were not thought at the time to be relevant to his decision, but they are central to our concerns tonight.

For the reasons we have discussed tonight, I was minded to support the noble Lord's original Motion. However, I did not believe that the time was right to make that decision this evening and thought that the Minister should have time to reflect on our deliberations. There are well known constraints on the ability of noble Lords to support further committees, and the views of the Liaison Committee would be helpful. I agree with the noble Lord, Lord Wallace of Saltaire, that if noble Lords decide that there should be a select committee, we will find the necessary resources.

As I have indicated, however, it would be preferable for the MoD to open the inquiry itself. In addition, noble Lords will soon be debating the Armed Forces Bill, and the issue of boards of inquiry will be in scope, as it were. During the passage of the Bill a number of other matters will have to be decided by noble Lords.

I very much welcome the intervention of the Minister at the end of the noble Lord, Lord Chalfont's speech.

8.41 p.m.

Baroness Symons of Vernham Dean

My Lords, I thank the noble Lord, Lord Chalfont, for moving the Motion, and all noble Lords for their participation in the debate, which has been very balanced and constructive.

It is a debate about the appointment of a Select Committee to consider the circumstances surrounding the crash of the Chinook helicopter on the Mull of Kintyre on 2nd June 1994. All noble Lords have reiterated that this was a tragic and heartrending accident, following which the RAF board of inquiry reached perhaps the most difficult judgment possible: that both pilots had been grossly negligent in flying their aircraft into cloud-covered high ground. No Minister, standing where I stand now, could fail to be aware of the strength of feeling that this judgment generated. The noble Lord, Lord Chalfont, has been unswerving in his wish to make certain that there has been no injustice in that judgment, and that no stone is left unturned in examining all the circumstances of that tragic flight. I pay tribute to him for the steadfast way in which he has approached the campaign and for the obvious sincerity and measured way that he has again advanced his case this evening.

I also admire the families, who have been so committed in defending the loved ones they have lost.

There has been much said and written about the accident, and many hypotheses have been advanced to explain the crash. These mainly centre on a possible technical failure causing loss of control, although the RAF board of inquiry found no evidence of any technical malfunction. The pilots chose to carry out the flight under visual rather than instrument flight rules. This meant, as the noble Lord, Lord Eden of Winton reminded us, that they had to keep clear of the cloud at all times, and keep the surface in sight. But, as they had been warned, there was very low cloud and very poor visibility over the mull. The Mull of Kintyre is 1,463 feet above sea level. A witness reported that at two nautical miles from the mull the aircraft was flying at between 200 and 400 feet. At 0.95 nautical miles, or just twenty seconds from impact, the crew made a manual change to their on-board navigation computer. At that point, the pilots must have been in control of their aircraft and known how close they were to the mull. Given the deteriorating weather and the strict visibility requirements under visual flight rules, they should by this time already have chosen an alternative course. Immediately, they could and should have either turned away from the mull, or slowed down and climbed to a safe altitude.

At 15 to 18 seconds before impact, the aircraft's height was still only 468 feet, as recorded on the tactical air navigation system. The pilots would have seen this information clearly, but at that point the aircraft was still climbing only gently. At four and a half seconds before impact, the crew exercised an emergency manoeuvre and climbed a further 150 feet in those final seconds. As the noble Lord, Lord Jacobs, said, the aircraft crashed in cloud at a height of 812 feet at a ground speed of 151 knots, or 174 mph.

Those are the circumstances of the flight, and it is important that we remind ourselves of those. The essence of the judgment of gross negligence was that all the available evidence indicated that the pilots flew a serviceable aircraft at speed, and at low level, into cloud-covered high ground, which they had been warned to expect.

So much has been said and written about it over the last six and a half years. We all feel great sympathy for the families of the dead pilots, and we entirely understand their wish to clear their loved ones' names. However, as I stressed the last time we debated the issue, we must also remember with sympathy and understanding the relatives of the others who so tragically lost their lives. For them also, the accident is relived every time we debate it or it appears again on the television or in the press. They also deserve our sympathy and sensitivity.

The circumstances of this crash, the conclusions of the hoard, and the supporting evidence have been reviewed many times. As the noble and gallant Lord, Lord Craig of Radley, said, the Ministry of Defence has looked at every piece of possible new evidence. He reminded us that since 1997 the circumstances of this accident have been subject to a full debate in this House, and five Oral Questions. In another place, Ministers have answered an Adjournment Debate, and three Oral Questions. There have been over two hundred Written Questions about the accident and a similar number of parliamentary inquiries. Indeed, the noble Lord, Lord Chalfont, and I discussed the issue in meetings and informally. I know that he understands that Ministers are well seized of the need to determine the case sympathetically and with understanding, but always based on the evidence that the relevant information has to offer.

The Defence Committee of the other place thoroughly and comprehensively investigated the lessons to be learned from the crash. It published a report, which concluded that there was no compelling evidence to support the claims of fundamental flaws in the design of the Chinook Mark 2 helicopter or its components.

The Select Committee on Public Accounts in the other place has also looked recently at certain technical aspects allegedly surrounding the accident. The Ministry of Defence will respond formally to their report very soon.

I should like to emphasise that we have been consistently willing not only to examine any new material, but also to respond fully, with our appraisal of it. I regret that we have not yet come back to the noble Lord with our analysis of the information and material that he sent us at the end of August last year. I hope that we will be able to do so very soon. The noble Lord should not read anything into this delay. It is simply that we are conducting a very thorough and careful analysis of his submission and inquiries, and we must get all the information together before responding to the noble Lord.

Lord Trefgarne

My Lords, did the noble Baroness say August of last year?

Baroness Symons of Vernham Dean

My Lords, indeed I did.

My purpose in reviewing all that has happened is to emphasise the close examination that has already been made of the case. It is true that opinions differ and hypotheses also differ, but at no point has anyone come up with any genuinely new evidence that would cause us to reopen the board of inquiry.

The noble and learned Lord, Lord Ackner,, has made some very trenchant criticisms this evening. Much comment has been made, and continues to be made, about the standard of proof required to sustain the judgment reached through a board of inquiry process. The inquiry was very thorough, as indeed have been all the subsequent departmental reviews which have followed the many and various submissions and letters on this accident. In making their final determination, the reviewing officers, both of whom are very experienced aviators, exercised their professional judgment. They did so in the full knowledge of the import and the impact on all those involved of their judgment, which was taken only after the fullest consideration of all the evidence. They were required to look at this tragic case in the most objective and impartial manner and that is what they did. The fact that others may disagree with that judgment does not make it wrong.

No government should overturn the results of a properly constituted board of inquiry because others disagree with the findings. The passage of time, and the view of hindsight, might make this to some a tempting proposition. However, this is not a political issue. It is an issue to be decided on the evidence. I am glad that the noble Earl, Lord Attlee, nods his head at that point. I remind him that the board of inquiry sat for seven months. It then deliberated for around a year before it issued its report, a report which covered four volumes together with the supporting annexes. There is a huge amount of evidence on which that judgment was based. A Select Committee, if it is indeed set up, will have a very great job before it.

If it is the feeling of the House that the course proposed by the noble Lord is desirable, your Lordships will wish to be clear about the principles under which any committee may operate. I am sure that your Lordships will not wish to provide a vehicle for some of, if I may say so, the more sensationalist members of the media; nor wish to see an attempt to overturn the board of inquiry report as a way of attacking the integrity of the two senior officers involved. These officers were required to consider their judgment against the stringent demands of the burden of proof which then existed for such cases. They took their decision on the basis of the facts and their detailed professional understanding, as senior RAF officers, of the very high standards under which RAF aircrew are required to operate.

A number of points were raised. The noble Lord, Lord Eden of Winton, had many questions which he said had received no satisfactory response. The noble Lord, Lord Jacobs, reiterated his misgivings, which we have indeed discussed on a number of occasions. The noble and learned Lord, Lord Ackner, was mainly concerned about the requirement of proof by the manual in reaching a conclusion about negligence. That was to some extent echoed by the noble and learned Lord, Lord Brightman, who expressed concern about the pilots not being represented on the day. The noble Baroness, Lady Park, reiterated her concerns over the lack of black boxes, a point about which I have been keeping the noble Baroness informed, as she was kind enough to say. The noble Lord, Lord Fitt, reiterated his heartfelt concern about what really happened in the uncertain and difficult circumstances of that day. The noble Lord, Lord Wallace of Saltaire, added his voice to our deliberations.

If your Lordships so decide, perhaps I may suggest that all these matters are ones that a Select Committee might look at. But I make one point. The air marshals will then be able to explain properly, in their own words, to the Select Committee why they reached the conclusions that they did, something they have not been able to do properly before.

It would be wrong to re-run the board of inquiry. It is important that all the views are carefully listened to and very carefully balanced. I must say that that has not always been what has happened in the past, although I know that the House today has been very balanced in the way that it has approached the issue.

Yes, the Government have reservations about the noble Lord's proposal, not least because of the thorough way in which the accident has already been investigated. I believe that successive Ministers have been fully and honestly briefed on all aspects of this case. I believe that Ministers of both parties have been honest in their dealings with this House and with another place. Nothing has been or is being hidden. That is because we believe that there is nothing to hide. It follows that we will, of course, co-operate fully with any committee that your Lordships may decide to establish.

Finally, I am very grateful for the courteous and understanding way in which your Lordships have contributed to our debate this evening. It is an incredibly difficult subject. Every time we debate it in your Lordships' House I know that all noble Lords who are closely concerned with the issue are at pains to be detailed, cogent and sympathetic in what they are saying, but judgments must always be based on the evidence that we have before us. I should like to put firmly on the record my sincere and heartfelt sympathies for the families of all who lost their lives in this tragic accident.

Lord Jacobs

My Lords, before the Minister sits down, can she confirm that if, by any chance, a new inquiry were to be opened, under the present rules it would not be possible to find against deceased persons?

Baroness Symons of Vernham Dean

My Lords, as has already been said by other noble Lords, since the findings of the board of investigation were made, the rules have indeed been changed. It is not now the case that findings of gross negligence are possible against those who have died in such accidents.

8.54 p.m.

Lord Chalfont

My Lords, I thank all noble Lords who have taken part in the debate. I agree with the Minister that it has been most valuable and constructive. I thank especially the Minister, both for her handling of her reply to the debate and for the very early indication that the Government will not oppose the Motion.

The noble Baroness said that the issue had been dealt with many times through a series of questions and debates answered by a series of Ministers and therefore suggested that we had covered the ground as fully as we can. The point is that all those Ministers, including the Prime Minister, who answered all those questions and all those debates were all talking from the same official brief. So it is not surprising that we have not had any different answers.

However, I shall not go into any of that at this point because it can all be left to a Select Committee of your Lordships' House. I am grateful to the noble Lord, Lord Wallace of Saltaire, and to the noble Earl, Lord Attlee, for saying that absence or shortage of resources is the least of all the arguments against the setting up of the Select Committee. As the Motion says, in accordance with the procedure of the House, the final decision is for the whole House to take. If the House decides, as I hope it now will, to set up a Select Committee to examine this issue, a Select Committee there will be; and if resources are needed, the resources should be found. I am most grateful to the noble Lord and to the noble Earl for making that point.

The integrity of the two air marshals or of anyone else involved is not at issue. Never at any time in the years that I have been helping to conduct this campaign have I cast any doubt on anyone's integrity; nor do I so do today. The air marshals were entitled, as part of a normal board of inquiry procedure in the Royal Air Force, to come to the conclusion they came to. They think that they were right; I think that they were wrong. That is what I hope the Select Committee will decide.

On Question, Motion agreed to.