Lords Sitting of 5 November 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
PrayersȔRead by the Lord Bishop of Wakefield.

The Lord Bishop of Worcester
Peter Stephen Maurice, Lord Bishop of Worcester—Was (in the usual manner) introduced between the Lord Bishop of Wakefield and the Lord Bishop of Portsmouth.

Pakistan
2.41 p.m.
Lord Ahmedasked Her Majesty's Government:
Whether they recognise the newly elected Government of Pakistan.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, the British Government recognise states not governments. We have welcomed the holding of multi-party elections in Pakistan. The elections are an important milestone in Pakistan's ongoing transition to democracy. The next crucial step is the transfer of power to the new national assembly and establishing parliament's role. We will continue to watch this process closely and are committed to remaining engaged with the Government of Pakistan throughout their transition.
Lord Ahmed: My Lords, I thank the Minister for her kind reply. Will she agree that democratically elected governments are good for the rights of their electorate, and for peace, stability and regional development? Will Her Majesty's Government encourage the governments of India and Pakistan to start dialogue to resolve the issue of Kashmir in accordance with the will of the people so that they can have a free, fair and impartial plebiscite to decide their future?
Baroness Amos: My Lords, it is absolutely clear that democracy is good for south Asia. In particular, we welcomed the announcement of the Indian and Pakistani governments to withdraw their forces from their international border. We hope that both sides will take further steps to de-escalate tensions and that this will lead to a resumption of dialogue between India and Pakistan, because only dialogue can lead to a lasting solution of the Kashmiri issue.
Baroness Williams of Crosby: My Lords, I commend the Minister on her reply. It is very welcome to see some steps to de-escalate what has been a very troubling position. Given that we very much commend the Government of Pakistan on the help they have
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extended with regard to Al'Qaeda terrorists in Afghanistan, what steps are they taking to close down training camps on their territory on the other side of the line of control, from which there is a steady infiltration of terrorists into India?
Baroness Amos: My Lords, the noble Baroness will be aware that we have welcomed the steps that President Musharraf has taken so far to clamp down on terrorist and extremist groups in Pakistan. We shall urge him to continue in that vital task. We have made clear that the international community will expect Pakistan to take firm action against any terrorists seeking to use that country as a safe haven.
Lord Pilkington of Oxenford: My Lords, does the Minister find a contradiction between President Musharraf, who has tried to introduce democracy and done his best, and other nations of the Commonwealth who deny all the tenets of democracy? Does she feel that the Commonwealth is fulfilling its moral ideal?
Baroness Amos: My Lords, I have said on a number of occasions in this House that the Commonwealth is made up of 54 countries, all very different. Those countries have signed up to some clear principles. The Commonwealth Secretary-General has a key good offices role, which was strengthened recently at the Commonwealth Ministerial Action Group and at the Commonwealth Heads of Government meeting. Clearly, CMAG's role in looking at countries that violate the principles of the Commonwealth is very important.
Lord Alton of Liverpool: My Lords, does the Minister agree that a good test of the democratic credentials of any government is the way they treat their minorities and uphold human rights? Is she aware that over the past 12 months in Pakistan there have been 39 deaths, 100 injuries and nine attacks on churches, church buildings, hospitals and schools? Does she recognise that one of the continuing sources of persecution against that tiny minority in Pakistan has been the blasphemy laws on the statute book there? I support the call that she and her noble friend Lord Ahmed have made for those blasphemy laws to be repealed. Will she renew that call?
Baroness Amos: My Lords, we remain extremely concerned about the treatment of minorities and the misuse of the blasphemy laws. We are also concerned that extremist and sectarian groups have been responsible for violence and intimidation across the country. We shall continue to discuss that with the authorities in Pakistan.
Lord Weatherill: My Lords, I declare an interest in that I maintain close contact with my wartime regiment, the 19th Lancers, three of whose senior officers were members of General Musharraf's government. I welcome the noble Baroness's support for Pakistan. Does she accept that it is not really possible to have the sort of democratic elections that

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we have in our country in a country such as Pakistan where half the population is illiterate and subject to pressures and worse from the zamindars, the landlords, the tribal chiefs and the mullahs? Should not General Musharraf be warmly congratulated on having put into practice his promise to hold an election? Finally, will the Minister reaffirm that she will continue to help him achieve the objectives of Quaid-e-Azam in the days to come in his own country and, in particular, to support him, because of his importance in a very dangerous and difficult part of the world?
Baroness Amos: My Lords, I am aware of the noble Lord's particular interest. I think I made clear that we welcomed the elections, although we realise that they were not perfect. European Union and Commonwealth observers highlighted the deficiencies. However, in working with countries such as Pakistan, bilaterally or through the European Union or the Commonwealth, one of our responsibilities has to be to help them to ensure that elections are carried out as freely and fairly as possible. These elections are a step forward in the transition to democracy in Pakistan. We want a stable, democratic Pakistan that works for the good of all its people.
Lord Howell of Guildford: My Lords, although some of the current trends in Pakistan are very worrying, following the remarks of the noble Lord, Lord Weatherill, does the Minister agree that there is more than one path to democracy? One kind of democracy can lead to more liberty; another kind can lead to hideous suppression and oppression of a kind that we would not welcome. Will she counsel her colleagues to ensure that when we press Pakistan we do so gently and with caution, recognising that too great an acceleration or enthusiasm for parliamentary democracy at this stage might destabilise things? Does she agree that the line taken by the European Union with the EC-Pakistan co-operation pact is very sensible and positive at this stage? Will she undertake that the Government will give their full backing to that agreement?
Baroness Amos: My Lords, I hope I have made clear that we have been working with the Government of Pakistan, not just bilaterally but also through the Commonwealth and the European Union. The noble Lord is right that the co-operation agreement is an important element of that. We have sought to give the Government of Pakistan technical assistance. That is one area in which the Commonwealth in particular has taken a lead role. We will continue to do that. The noble Lord is right that in moving down the road to democracy, it is important that all the different elements are in place.

Regional Museums
2.50 p.m.
Lord Sheldonasked Her Majesty's Government:
What proposals they have to meet their commitment to revitalise regional museums.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, we shall be providing a total of £70 million for regional museums from this year until 2005–06. The funds are to be used to modernise and improve the quality of regional museums services.
Extra funding will also be available to the national museums to enable them to work in partnership with the regional museums and there will be funds from the Department for Education and Skills to support regional museums' education.
We have asked Resource, the Council for Museums, Archives and Libraries, to work with regional museums to determine how funds are to be distributed across the country.
Lord Sheldon: My Lords, I thank my noble friend for that reply. However, does she accept that the report, Renaissance in the Regions, produced by the committee chaired by my noble friend Lord Evans of Temple Guiting, set out in some detail the way in which moneys should be made available to our museums in the regions? At present museums are closing, some of the buildings are decaying and there is a decline in the morale of many of the people who work in them. Centres are needed in each region to act as a hub to obtain the assistance that many of these smaller museums require. Will my noble friend undertake to ensure that more funds are made available to enable them to continue to contribute to cultural life in the regions of this country?
Baroness Blackstone: My Lords, I am most grateful to my noble friend Lord Sheldon for the work that he has already done as a member of the committee, chaired by my noble friend Lord Evans of Temple Guiting, that produced the report, Renaissance in the Regions. It is an excellent report and the Government have endorsed many of its findings. For the first time funding has been made available from central government for these museums to enable a significant start to be made to the programme set out in the report and to develop its recommendations. It is, of course, for local authorities and, in some cases, universities, to provide the core funding for those institutions.
Lord Baker of Dorking: My Lords, is the Minister aware that the rhetoric of the Government on museums is to increase attendance and have longer opening hours? However, museums all over the country are finding it impossible to maintain their collections and out of the question to add to them. In order to save costs, they have to cut staff and close for hours, and sometimes days, a week. This week galleries

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will be closed in the National Gallery and the British Museum. When will the Government's performance match their rhetoric?
Baroness Blackstone: My Lords, I do not think that the government of whom the noble Lord, Lord Baker, was a member had a terribly good reputation in respect of support for museums. For some years the funding available to our national museums and galleries was at a standstill. This Government have increased funding to those museums by 17 per cent in real terms. I repeat what I said in answer to the supplementary question of my noble friend Lord Sheldon. It is for local authorities around the country to support their regional and local museums. The Government are providing additional funds to help to ensure that those museums are able to improve the quality of the services that are available to them. As regards the closure of galleries at the British Museum, the Government are making available to the British Museum an extra £400,000 in the first year of this spending round to keep all of its galleries open.
Viscount Falkland: My Lords, has the noble Baroness seen the leader in The Times today that specifically mentions regional museums and urges creative thinking? What does she construe from that urging? If she agrees with it, what direction does she believe the creative thinking should take?
Baroness Blackstone: My Lords, I have seen the leader in today's edition of The Times. It is for the regional museums themselves and, indeed, Resource—the government body that works to provide facilities, advice and funding to the regional museums—to collaborate more effectively through the system of hubs that my noble friend Lord Sheldon mentioned. It is also the Government's policy to encourage the national museums and galleries to work much more effectively than has been the case in the past, sharing collections, curatorial skills and expertise with the regional museums.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that one way to revitalise regional museums is to ensure that people know where they are and can find them? Is she aware that the Highways Agency is still dragging its feet over the provision of brown tourism signs on the M4 to the excellent steam railway museum in Swindon which is part of the potential Great Western Railway world heritage site and attracts 150,000 visitors a year? Will my noble friend please encourage the Highways Agency to install signs on Junctions 15 and 16 without further delay?
Baroness Blackstone: My Lords, I shall see whether the signs can he put up tomorrow. My noble friend is absolutely right; there should be good signage to all of our regional museums to enable people who wish to visit them to find them. It is, of course, the responsibility of the Department for Transport and the Highways Agency to install signs on our major
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roads. They have been engaged in a consultation process and museums and galleries have been among the many consultees and have made their views known.
Baroness Finlay of Llandaff: My Lords, will the Minister please inform the House whether consideration has been given to providing a national portrait gallery for Wales given the excellent portrait painters in Wales and the lack of a focus for the regional heritage there?
Baroness Blackstone: My Lords, the national museums and galleries of Wales are a matter for the devolved administration. Therefore, I cannot answer that question.

Charities: Strategy Unit Review
2.56 p.m.
Lord Phillips of Sudburyasked Her Majesty's Government:
How they intend to ensure the widest response to the public consultation on the Strategy Unit Review of Charities; and whether they will ensure that the consultation will primarily be evaluated by the authors of the review and that the results are published.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, officials from the Cabinet Office Strategy Unit and from the Active Community Unit in the Home Office are undertaking an extensive programme of consultation events and meetings across the United Kingdom over the three month period. There will be some 50 events taking a wide variety of form. Responses to the consultation will be evaluated by officials in those two departments and by other departments affected by the recommendations. The results will be published.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for that encouraging reply. However, may I ask him to ensure that the authors of the report, which is extremely complex, have the opportunity to evaluate the responses? Does the Minister share my concern, and, I think, that of many noble Lords in this House, with regard to the impact of the review on small charities? Of the 300,000 or so charities. 95 per cent or more have no paid staff. Given that the review contains 61 proposals, and that over half of those are earmarked for legislation, will the Government consider legislating extremely cautiously and, in so far as they do, perhaps exempt the smaller charities, as was the case in the 1992 and 1993 Charities Acts? Finally, will the Government evaluate the impact of legislation a year after its introduction?
Lord Filkin: My Lords, as I indicated, the authors of the report will be part of the evaluation as well as the consultation process, subject, as ever, to civil servants' career progression. We shall be highly mindful of the

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impact of the review on small charities. In fact, throughout the report there is a strong thrust of seeking to deregulate small charities and reduce the burden on them. If the review is carried through, they will have less administration rather than more. As the House well knows, the Home Office is always extremely cautious about legislating.
Lord Renton: My Lords, in further considering this matter will the Government bear in mind that the traditional definition of charity has been very widely interpreted in recent times and that perhaps the time has come for it to be more precisely defined?
Lord Filkin: My Lords, the noble Lord, Lord Renton, is right. In many ways, charity law is the product of 400 years of history, which is partly what the strategy unit report examined. It looked at some of the historic exemptions and pointed out that in terms of tax relief and public confidence it is important that clear and strong principles of public benefit should be applied fairly across the piece. The central message is about public benefit, which is being utilised. That will be applied in a consistent fashion to all benefiting bodies.
Lord Judd: My Lords, does my noble friend accept that among the many who have been deeply involved in charitable work, the report has been welcomed as an extremely thoughtful and stimulating contribution to the future? Does he agree that in the general approach to the work of charities at this juncture, while there may be an important role for charities in partnership with government in providing services, we must take care to ensure that they are not over-encouraged to go down the road of simply being subcontractors in service provision, as distinct from fulfilling their historic role of being initiators, capitalists and making an original, qualitative contribution to society?
Lord Filkin: My Lords, thank you for the welcome. I do not believe that there is an issue between us. I refer to the parallel report, The Cross Cutting Review, which also came out recently. It explored ways of making it possible for charities to make a stronger contribution towards service delivery, if they wish to do so, and it also looked at some of the less effective ways of procuring services. That approach sits against the background of the need to be absolutely clear that charities should set their own objectives, subject to law. If they want to become involved in service delivery, fine; and if they do not wish to do so, that is also fine. Many will wish to do both campaigning and service delivery.
Baroness Sharpies: My Lords—
Baroness Sharp of Guildford: My Lords—
The Lord Bishop of Wakefield: My Lords, do the Government recognise that, notwithstanding the assurance in the report, many in the Churches—and,
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indeed, other faith groups—will be concerned about the proposed abolition of the presumption of public benefit in the case of bodies established for the advancement of religion, especially because the report gives no convincing explanation for the abolition?
Lord Filkin: My Lords, the central argument about public benefit is that there should be no automatic assumption of public benefit without at least some form of evaluation of that process. That is good and sound for tax exemptions reasons and because of public confidence. However, I do not believe that there is any cause for anxiety among established Churches. The report recommends that it is essential to retain the centrality of public benefit. The Churches should have no difficulty in demonstrating that if they practise the celebration of a religious right that is open to the public, because that should be seen as providing a public benefit. Over and above that, Churches with a relatively small turnover may also be absolved from some of the regulatory burdens.
Baroness Sharpies: My Lords—
Baroness Sharp of Guildford: My Lords, is the Minister aware—
Viscount Bridgeman: My Lords—
Noble Lords: Go on!
Viscount Bridgeman: My Lords, does the Minister agree that some eminently suitable persons are put off becoming trustees, particularly of the larger and more exposed charities, on account of uncertainties about personal legal liability? Will the Minister take note of part 5 of the unit's report, which proposes the need for a degree of protection in such situations, and assure the House that those recommendations will form the basis of any future legislation?
Lord Filkin: My Lords, I note that concern. There are many of us in the House who are trustees and who are aware of our exposure. Sometimes, those risks can be insured against, but sometimes not. I shall consider the noble Viscount's point. As for legislation, the House would clearly not expect me to give a view one way or the other.
Lord Pilkington of Oxenford: My Lords—
Baroness Sharpies: My Lords, has there been an increase or decrease in the number of applications from organisations for charitable status?
Lord Filkin: My Lords, there has been an increase. From recollection, it is running at about 1,800 new registrations a year.
Lord Pilkington of Oxenford: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, we must move on.

Female Genital Mutilation
3.4 p.m.
Baroness Rendell of Baberghasked Her Majesty's Government:
What progress they have made since 1st January 2002 towards putting an end to female circumcision in the United Kingdom.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, female genital mutilation is a brutal practice that is illegal in this country. The Government condemn the practice and wish to see it eradicated. We are continuing to work to educate the practising communities to abandon female genital mutilation. We have increased funding for FORWARD, the leading organisation working in this field. We have also been exploring how we might strengthen the current legislation governing that practice.
Baroness Rendell of Babergh: My Lords, I am grateful to my noble friend for that encouraging and helpful Answer. Is he aware of whether Her Majesty's Government have any plans to prevent parents taking their small daughters out of the United Kingdom for the purposes of genital mutilation in the countries of origin? Is he also aware that preventive measures are in operation in some other member states in the European Union?
Lord Hunt of Kings Heath: My Lords, I am aware of that. I am ensuring that the Department of Health obtains information about the successes of other countries in dealing with this practice. On the question of taking young girls abroad, that is—or can be—an offence if female genital mutilation is also an offence in the country to which those people are travelling. However, not all countries have made the practice an offence. That is why we are considering possible amendments to the current law. If a local authority has reason to believe that a child might be taken abroad so that mutilation can be carried out, it is obliged, under the Children Act, to make such inquiries as it considers necessary to decide whether it should take any action to safeguard or promote the child's welfare.
Baroness Trumpington: My Lords, is the Minister aware that I took on the Bill concerning female genital mutilation from my noble friend Lord Glenarthur? At the same time, I was engaged with another Bill on intimate body searches. I strongly wondered whether I was ever going to do any legislation above the waist. Is the Minister aware of any fatalities in this country as a result of this disgusting practice, as do occur in parts of Africa?
Lord Hunt of Kings Heath: My Lords, I am not aware of figures detailing the number of fatalities. One of the problems is that very little information comes to the attention of public authorities because the practice is kept completely under wraps. That is the great
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difficulty. I pay tribute to the noble Baroness for her work in producing and taking forward legislation in this area. She will know that there have been no prosecutions since the Act came into effect because so few complaints have been made.
Lord Walton of Detchant: My Lords, is the Minister aware that 25 years ago the General Medical Council passed a decree to the effect that any doctor who was guilty of performing this kind of operation for social reasons in the United Kingdom might well be guilty of serious professional misconduct and would face the risk of being erased from the register? What has been the effect of that particular decree of the GMC?
Lord Hunt of Kings Heath: My Lords, my understanding is that two doctors have been struck off: one for undertaking female genital mutilation in 1993 and one for offering to perform the operation in 2000.
Lord Chan: My Lords, in view of the life-threatening complications of female genital mutilation, particularly during labour, will the Minister tell us what plans there are to have partnerships between the NHS, trusts and local communities when female genital mutilation occurs? I refer to an example involving the Liverpool Women's Hospital and the Somali community.
Lord Hunt of Kings Heath: My Lords, I am glad to commend a number of excellent schemes around the country that attempt to deal with this very difficult and reprehensible issue. There are a number of specialist clinics in the NHS, all of which have trained staff to deal with girls and women and which offer reversal surgery. We are undertaking further research into the scope of the problem. Among the issues that we shall examine are the scale of NHS provision and the extent to which we need to encourage statutory agencies to collaborate more.
Baroness Thomas of Walliswood: My Lords, the Minister told us of the educational efforts that were being made in this area. Can he tell us whether a change in attitude towards this serious problem is thought to be taking place among the generations in some communities? Are any of the educational programmes directed at young men as well as at young women?
Lord Hunt of Kings Heath: My Lords, we are funding a number of educational programmes through FORWARD. I believe that the noble Baroness made some important points. So far as concerns the number of women affected, FORWARD estimates that approximately 74,000 first-generation African immigrant women in the UK have undergone female genital mutilation. It also estimates that as many as 7,000 girls under the age of 16 who live in practising communities may be at risk. Clearly we need to redouble our efforts in terms of education and support

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from statutory agencies. Above all, we need to make it clear that such an act cannot be tolerated under any circumstances.
Baroness Gardner of Parkes: My Lords, I refer to the case of the person who was struck off for offering to carry out this operation. Can the Minister tell us whether such an operation is currently illegal? If he is considering changes to strengthen legislation in this respect, will that operation become illegal under his new proposals?
Lord Hunt of Kings Heath: My Lords, although no prosecutions took place in the case of the doctors, it is not for me to comment on whether they should have done. The problem in relation to legislation does not concern prosecution; it concerns the fact that FGM is not illegal in certain countries. Therefore, in law we cannot take action against parents or other adults who take young girls from this country to those countries.

Adoption and Children Bill
3.11 p.m.
Lord Hunt of Kings Heath: My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved, That the Commons amendments and reasons be now considered.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
COMMONS AMENDMENTS IN LIEU OF CERTAIN
LORDS AMENDMENTS AND COMMONS
AMENDMENTS TO LORDS AMENDMENTS AND
MOTIONS TO BE MOVED ON CONSIDERATION OF
COMMONS AMENDMENTS
[The page and line refer to HL Bill 82 as first printed for the
Lords.]
LORDS AMENDMENT
26 Clause 44, page 27, line 38, after first "a" insert "married"
The Commons disagreed to this amendment but propose the following amendments in lieu thereof—
26A Page 24, line 8, leave out "step-parent who" and insert "partner of a parent and the partner"
26B Page 24, line 10, leave out "step-parent" and insert "partner"
26C Page 26, line 5, leave out "married"
26D Page 26, line 7, leave out " a step-parent" and insert "the partner of a parent"
26E Page 26, line 15, leave out "married"
26F Page 26, line 22, leave out "married"
26G Page 28, line 19, leave out from "section" to "a" in line 20 and insert "50(2) by the partner of"
26H Page 38, line 19, leave out from beginning to "the" in line 20 and insert "But references in this Chapter to adoption do not include an adoption effected before"
26I Page 38, line 21, end insert—
"( ) Any reference in an enactment to an adopted person within the meaning of this Chapter includes a reference to an adopted child within the meaning of Part 4 of the Adoption Act 1976".
26J Page 38, line 23, leave out from "law" to end of line 32 and insert "as if born as the child of the adopters or adopter.
(IA) An adopted person is the legitimate child of the adopters or adopter and, if adopted by—

(a) a couple, or

(b) one of a couple under section 50(2), is to be treated as the child of the relationship of the couple in question."

26K Page 38, line 34, leave out paragraph (a) and insert—
"(a) if adopted by one of a couple under section 50(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple"
26L Page 38, line 40, end insert "or to any other natural relationship"
26M Page 39, line I, leave out from 'effect" to 'from" in line 3
26N Page 39, leave out line 9 and insert "adoption"
260 Page 39, line 13, leave out from beginning to "adoptive" in line 14 and insert—
"( ) an adopter may be referred to as an adoptive parent or (as the case may be) as an adoptive father or".
26P Page 39, leave out lines 17 to 19 and insert—
"( ) Subsection (1) does not affect the interpretation of any reference, not qualified by the word "adoptive", to a relationship".
26Q Page 39, line 19, at end insert—
"( ) A reference (however expressed) to the adoptive mother and father of a child adopted by—

(a) a couple of the same sex, or

(b) a partner of the child's parent, where the couple are of the same sex,

is to be read as a reference to the child's adoptive parents".
26R Page 39, line 24, leave out "66(1)" and insert "66(1) and (IA)"
26S Page 40, line 10, leave out from "or" to "for" and insert "(if she does so as one of a couple) as the child of the other one of the couple"
26T Page 42, line 8, leave out "person to whom the adopter is married" and insert "other one of the couple"
26U Page 46, line 45, leave out "a married couple" and insert "two people"
26V Page 49, line 39, leave out from "the" to end of line and insert "adopters or adopter"
26W Page 51, line 3, leave out "a step-parent" and insert "the partner of a parent"
26X Page 93, line 40, leave out from -adoption"" to "Adoption" in line 41 and insert "after "1978" there is inserted "or in the"."
26Y Page 94, line 4, leave out from "(1)" to '66" in line 5 and insert "after "1976" there is inserted "or section""
26Z Page 94, line 7, leave out from "(a)" to "(2)(b)" in line 8 and insert "after "39" there is inserted "or subsection"
26AA Page 94, line 9, leave out from "(b)" to "66" in line 10 and insert "after "1976" there is inserted "or section""
26BB Page 94, line 12, leave out from "birth)" to "68(2)" in line 13 and insert "at the end of subsection (2) there is inserted "or section""
26CC Page 94, line 14, end insert—
"The Adoption Act 1976 (c. 36)In section 38 of the Adoption Act 1976 (meaning of "adoption" in Part 4), in subsection (2), after "1975" there is inserted "but does not include an adoption of a kind mentioned in paragraphs (c) to (e) of subsection (1) effected on or after the day which is the appointed day for the purposes of Chapter 4 of Part 1 of the Adoption and Children Act 2002"".
26DD Page 101, line 25, leave out paragraph (a) and insert—
"(a) for subsection (1)(a) there is substituted—
"(a) a Convention adoption, or an overseas adoption, within the meaning of the Adoption and Children Act 2002, or"".
26EE Page 101, line 28, leave out from "(2)(a)" to "66" in line 29 and insert "after "1976" there is inserted "or section""
26FF Page 101, line 32, leave out from "principle)" to end of line 34 and insert "for paragraph (c) of subsection (3) there is substituted—
"(c) is an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002"".
26GG Page 101, line 35, leave out from "(5)" to end of line 38 and insert "after "1976" there is inserted "or section 68 of the Adoption and Children Act 2002""
26HH Page 105, line 3, leave out from "mother)" to end of line 4 and insert "in subsection (2), for "child of any person other than the adopter or adopters" there is substituted "woman's child""
26II Page 105, line 5, leave out from "father)" to end of line 6 and insert "in subsection (5)(c), for "child of any person other than the adopter or adopters" there is substituted "man's child""
2611 Page 105, line 17, leave out from "(3)" to "4" in line 18 and insert "after "1976" there is inserted "or Chapter"
26KK Page 107, line 16, leave out "11 to 13 and 17" and insert "and 11 to 13"
26LL Page 107, line 33 leave out paragraph 99
26MM Page 112, line 14, leave out paragraph 9
26NN Page 114, line 10, leave out paragraph 13
26OO Page 114, line 23, leave out paragraph 15
26PP Page 116, line 10, column 2, at end insert "except Part 4 and paragraph 6 of Schedule 2"
26QQ Page 116, column 2, leave out lines 32 and 33
26RR Page 117, line 31, leave out "Section 4"
26SS Page 117, line 46, leave out "Section 85(4)"
26TT Page I I9, line 10, at end insert "couple … section 139(4)"
26UU Page 119, line 27, end insert "partner, in relation to a parent of a child…section 139(7)"
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do not insist on their Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof.
On Report, this House debated whether adoption should be permitted by unmarried couples—whether of the opposite or same sex. By a majority of 34 votes, this House asked the other place to think again. The House of Commons has duly reconsidered the matter and, on a free vote on the government side at least, has confirmed its view that adoption by unmarried couples is both right and necessary.
I now ask this House to reconsider its decision, not for the sake of unmarried couples or for the sake of same-sex couples and not even for the sake of married couples. Not one couple in this country, whether married or not or whether opposite sex or not, has any right whatever to adopt. I ask this House to reconsider because I believe that, by so doing, it will immeasurably improve the life chances of hundreds of our most vulnerable children. Those children are central to this debate. Our only consideration should be what is in the best interests of the child. That fundamental principle derives from the Children Act 1989 and is enshrined in the first clause of this Bill.
If we are putting the child first, can there be any doubt that adoption is a much better option for children than growing up in care? On Report, I
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referred to the outcome statistics for children in care and I believe that they are worth repeating. Half of those under the age of 18 in prison and 26 per cent of all prisoners have been in care at some stage. Up to 20 per cent of all care leavers experience some form of homelessness within two years of leaving care. More than half of all young people leaving care at the age of 16 and over are unemployed. Some estimates put that proportion as high as 80 per cent.
Does any noble Lord present this afternoon need to be convinced that adoption is the better option? Does anyone present today not feel a sense of anger at the neglect and failure of the adoption service over the past 20 years? That neglect and failure were well chronicled in a report to the Prime Minister. It showed that adoption was not being considered for enough children. It showed the delays, where decisions about how to provide secure, stable and permanent placements, including adoption, were not being addressed early enough. It showed where such decisions were not being focused clearly enough or where action was not being taken swiftly. It showed that where plans for permanent placements, including adoption, are made, they are not delivered quickly enough from the point of view of the child's time scales. The report showed that services were not providing the support that families need throughout the process of securing and supporting adoption and permanence.
In 1996, the total time spent in care before final adoption was three years and four months. In 1999–2000, 44 per cent of children had been looked after for three or more years before adoption. Thankfully, that situation is beginning to improve. But far more needs to be done. That is why we introduced the Bill. We did so in order to reform adoption law and to make it more modern. We are introducing national adoption standards so that everyone involved in the adoption process knows what to expect. They will know how long it will take and, no matter where they live, they will receive a fair and consistent service. That is why we are placing a clear duty on councils to provide adoption support services; it is why we are establishing a new legal framework for financial support which will be fairer and more flexible; and it is why we are taking action to reduce delay in court cases involving children.
But none of that will help the children who continue to wait unless we can find suitable adopters for them. New legislation and new initiatives alone will not automatically provide an adequate supply of loving and stable new families. A never-ending number of children come into care. They have desperately sad histories and wait for another chance to be part of a loving family.
There is not a never-ending supply of adoptive families for those children. The British Association for Adoption and Fostering estimates that 5,000 new adoptive parents are needed every year. In January 2001, more than 2,000 children for whom adoption was planned did not have an adoptive family matched with them and have been waiting longer than six

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months. Thankfully, there is no shortage of adopters for very young infants. But those represent only one in every nine children adopted.
It is desperately sad that some of the children advertised in BAAF's March edition of Be My Parent magazine received no inquiries at all. That magazine featured 431 children waiting for adoption. The association received more than 1,200 inquiries about those children, but 129 children received no inquiries at all. Approximately half of all those children were from minority ethnic groups. Two-thirds of them were boys, and that is the point. It is evident that it continues to be difficult to place boys, black and minority ethnic children and, indeed, large sibling groups. I repeat that 129 children received no inquiries at all. What kind of future can those 129 children look forward to?
It is the firm belief of many adoption agencies and children's societies that permitting unmarried couples to adopt jointly would widen the pool of adopters. Let us reflect on what the British Agencies for Adoption and Fostering say,
"We recognise that many people who actually inquire about adoption are living in stable relationships but are not married".
We know that that deters some people from going ahead because they do not want to differentiate between two adult relationships to a child.
Alternatively, take the Association of Directors of Social Services which says that the reality is that it is very difficult to find families for those children who have had distressing early histories and who may present considerable challenges to new families. That organisation says,
"In our experience, families who succeed with those children can be quite unusual. We do not want to exclude people from the possibility of providing a loving home based on a stereotypical view of what a loving family may look like".
The Catholic Children's Society of Nottingham says,
"While we respect and value a loving married relationship in its entirety, we believe that the amendment to the Bill has the sole purpose of securing the best possible futures for children, who by virtue of their life experience, are unable to remain in their families of birth".
When we debated this matter on Report some of the discussion was more about adoption by single and gay people than adoption by couples. Frankly, I found that surprising. Single people and gay single people already can and do adopt children. Indeed, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out on Report, single people have been able to adopt since 1926. If a single person is in a relationship—an opposite sex or same sex relationship—at the time of their application to adopt, the partner is also assessed. That is right and proper because a child will be entering a new family where the relationship between the adopter parent and his or her partner is bound to have a significant bearing on the success of the child's placement.
However, as the law stands, such a partner cannot adopt. In those circumstances it surely makes no sense for an unmarried couple, whether opposite sex or same
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sex, not to be able to adopt jointly. How much better would it be for children living in families to have a legal relationship with both their parents rather than with just one and how much more secure would that make children, who inevitably have experienced much insecurity in their young lives, feel?
I have received correspondence from children living in families where only one parent is named on the adoption order. Those children are very clear that they want a legal relationship with two parents—not just one. Indeed, how does one tell a child in those circumstances that there are different levels of importance attached to the two adult partners, one of whom is the legal parent and one of whom is not?
Much has been said in our debates on this issue about the propensity of unmarried relationships to break down. I understand the concern about the breakdown of relationships and the devastating impact that that can have on children. But people in casual or short-term relationships are unlikely to put themselves forward, and if they did, they would not get very far in the process. Serious applicants would come from a self-selecting group, prepared for the tough process that adoption assessment entails. Surely those couples should have the same right to be assessed jointly as prospective adopters as that enjoyed by married couples.
I know full well the joys of a happy marriage and I know full well that not every married couple are happy or bring stability to their children. More than four in 10 marriages end in divorce. Of the married couples divorced in 1994, 56 per cent had children under the age of 16. Not every married couple can provide a suitable home for an adopted child, yet we know that some unmarried couples can provide wonderful homes for such children.
The key is the assessment process through which we can identify with confidence those single people and those couples who have the qualities necessary to be successful adoptive parents. Adoption is about suitability and judgments based on evidence. Generalisations cannot be used to determine an assessment. That would not be in the best interests of children. Assessments cannot be determined on the basis of a perceived hierarchy of relationships. That will not keep children safe. But we can assess each prospective adopter on his or her merits so that an informed decision can be taken as to their suitability to offer a home to a vulnerable child.
For that reason the adopter assessment process is critical. It is very tough. Some potential adopters feel that it is too tough and too intrusive. That is why adopters often drop out of the process at an early stage. But the assessment process must be tough, whether for married couples or for single people, or potentially in the future for unmarried couples.
I shall describe it. Once an initial inquiry has been made about adoption, the adoption agency asks prospective adopters to an information meeting, where they can meet and speak to social workers and adoptive parents and the adoptive parents can tell them at first hand about adopting a child and of the

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challenges and the rewards. The social worker will answer any questions that they have about what happens or about the children who need permanent new homes.
Then a social worker will arrange to meet with the prospective adopters. That meeting gives the prospective adopters an opportunity to find out much more about what will happen if they decide to go ahead. Also the social worker will discuss with them what they want out of adoption and what they feel that they can offer a child. If at that point the social worker feels that it is not a serious application or that there is no evidence of a secure relationship, or no evidence of joint commitment, he or she raises very serious questions and the process is unlikely to go further.
If the prospective adopters decide to go ahead they need to fill in an application form. They will be asked to give permission for checks to be made. If the application is accepted, the prospective adopters will begin a longer period of preparation, assessment and training. Preparation is a time when they can find out about adoption in much more detail. They can also undertake some very important thinking about making a lifetime commitment to a child: what it means and whether they can do it. Part of the adoption agency's job is to give them that information, including the kinds of children available in the local area.
During that period of preparation, the agency will begin to assess the prospective adopters' suitability to adopt by building up a thorough profile of them. That is known as the home study. The home study is demanding; it can feel intrusive and it will take several months to complete. But at the end of the study the prospective adopters and the social workers will work together to produce a home study report. That report includes a detailed assessment of them as potential adoptive parents, along with the results of medical, police and local authority checks and personal references.
That study goes forward to an adoption panel. The prospective adopters' social worker attends that panel and the prospective adopters may also be asked to attend. The panel will recommend whether or not the prospective adopters should be approved as adoptive parents. Once approved the agency will begin to consider whether there are children waiting for adoption who may be a suitable match. Once a child or children have been identified as possibly suitable, full information about their background will be given. If the approved adopters wish to proceed, they will meet the child or children. If they all agree, and after a gradual period of introduction, the child or children will be placed with the approved adopters.
When the approved adopters and the child or children feel that they have all successfully settled down as a family, they will be able to apply to the court for an adoption order to be made. It has of course to be agreed by the courts. If the courts are not satisfied, they can reject that application. Courts have been agreeing to orders concerning married couples and single adopters, whether heterosexual or gay.
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I have described the adopter assessment process in detail because I believe that it is essential to an understanding of what a tough, demanding and intensive process it should be. And it should be. It reinforces a fundamental principle at the heart of the Bill: the paramount interest of the child. That adopter assessment process will be gone through by anyone who wishes to adopt—married or unmarried, heterosexual or gay. Surely, that is the only test that must be applied, with the courts making the final judgment as to whether each adoption is in the best interests of the child.
Listening to the thought for the day this morning on Radio Four, I thought that Bishop Jim Thompson—
Noble Lords: Oh.
Lord Hunt of Kings Heath: I do listen, my Lords, to the thought for the day on Radio Four. Bishop Jim Thompson put the matter so well. He stated
"There would be serious problems if the law is not changed in my view and only married couples or single people remain able to adopt".
Bishop Thompson said:
"In my own Ministry often amongst children totally deprived of love, I have seen single parents abandoned by their husband or wife give exceptional care. I have also known many gay teachers, doctors, clergy, nurses and others who have demonstrated a lifetime of dedicated care of children, and indeed of people of all ages. I know of an eight-year-old child who had been through three failed placements with foster carers who was eventually adopted by a lesbian who had a partner. The child has now had five stable loving years of necessary individual attention and the future looks full of hope. I have also known married couples who, together with their natural children, have nearly been destroyed by being too brave in adopting a child who demanded all their attention".
He continued:
"The essential is to create as warm, secure and loving an environment for a child as is possible, and we have to get real about both the children and the qualities required in adoptive parents. The widening of the possible choice of adoptive parents is not a failed ideal but a truly compassionate and, I believe, Christian realism to help provide extremely vulnerable children with what they most need, a loving home".
Surely, the bishop is right. Reflect on the poor outcomes for so many children left in care for year after year. Reflect on those children for whom no inquiries are made from potential adopters. Single people, heterosexual or gay, can and do adopt. What can be the objection to unmarried couples adopting with the added security it will give to children and the extension of the potential pool of adopters?
If a person or couple—married or unmarried, straight or gay—is willing to go through this intense process and is ultimately approved by the courts, should we really seek to prevent them so doing? I do not think that the children who continue to wail will thank us if we do.
Moved, That the House do not insist on their Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof.— (Lord Hunt of Kings Heath.)

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3.30 p.m.
26AB Earl Howe rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 26 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof, leave out from "House" to end and insert "do insist on their Amendment No. 26".
The noble Earl said: My Lords, the House will be grateful to the Minister for his introductory speech, which mapped out very succinctly the important issues that we are debating today. It is perhaps right that we should remind ourselves how good a Bill this is. Noble Lords from all parties and from none have supported it and have helped to improve it. We all want it to become law for the sake of the many vulnerable children whom we believe it can help in finding loving and supporting families.
We are left today however with one stand-alone issue that we have to resolve. Nearly three weeks ago your Lordships approved a series of amendments standing in my name; the effect of which was to reject the proposal made in another place that unmarried couples and same sex couples should be eligible to adopt children. Yesterday, the House of Commons disagreed with the opinion of your Lordships. It therefore falls to us today to decide whether we wish to ask the other place to think again about this important matter for a second time.
I am quite clear that the decision taken by this House on 16th October was the right one. I shall explain why. But in so doing, I preface my remarks by making one thing plain: I have always recognised that those who have campaigned for a change in the law in this area act from honourable motives. I would go further than that and say that I acknowledge the emotional force of some arguments advanced in support of such a change.
This is without doubt an issue with arguments on both sides. But my position can be summed up very simply. The rational arguments for change, when put under the microscope, do not withstand close scrutiny. Indeed, some turn out not to be arguments at all but rather assertions, unsupported by any evidence whatever.
I have looked very closely at all these arguments and my firm belief is that they are outweighed, and outweighed heavily, by the considerations that I outlined to your Lordships on Third Reading. I briefly remind the House what those considerations are. Unmarried relationships are, as a generality, much less stable and less enduring than marriages, especially those relationships where there are also children. Stability and permanence in a parental relationship are acknowledged by everyone and acknowledged in the Bill as the cornerstone of a successful adoption.
If we know—as we do that the rate of break-up among unmarried couples with a child is six-and-a-half times greater than the break-up rate of married couples with a child, then we cannot say that as a rule cohabiting parents offer a better prospect of stability to a child than do married parents.
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I start therefore from the premise that the optimum environment for raising children is marriage. Indeed, there is compelling and well-authenticated evidence that children brought up by two parents who are married fare better under every measure that one can name than children brought up by those in less formal relationships—success at school, emotional stability, employment prospects and the avoidance of the terrible traps of drugs, teenage pregnancy and crime. All those desirable characteristics are much more likely to be evidenced in children who are brought up by married parents.
That is not to say that all married parents are equally successful or that unmarried parents are incapable of achieving the same result—of course not. But we need to remember one thing. Children who are adopted are different in one very important respect from children who are not adopted: they are almost always exceedingly vulnerable and frequently very damaged. Many have suffered emotional and physical neglect. Some have been abused and some have learning difficulties with emotional damage. Those are the children who, if they are left to the tender mercies of the care system, are all too likely to wind up unqualified, unemployed, on drugs or in prison. The difficulties presented by such children can be formidable. That is why the Bill should aim for the best for such children. If we believe that the best is, as a general rule, adoption by a married couple, we must examine extremely carefully why we should accept something that falls short of it.
Lord Campbell-Savours: My Lords, perhaps the noble Earl would answer a question. Does he recognise that during the Division on Report, when I voted with him on his amendment, there was a sizeable number of people in favour of unmarried couple adoption?
Earl Howe: My Lords, I was not aware of that because no noble Lord had told me that specifically. I am grateful to the noble Lord for that information. He may want to address that point to my noble friend Lord Jenkin of Roding when he speaks.
Three main arguments are advanced by the proponents of change, which need to be stripped down and examined. The first is that at present, insufficient children are being adopted and we therefore need to widen the pool of potential adopters to include couples, including gay couples, who are not married. To me at least, that argument has real emotional force. There are indeed children, usually those with particularly difficult histories, who will never manage to find adoptive parents. If only we allowed unmarried and gay couples to adopt, so the argument runs, those children would have a better chance of finding loving homes.
That argument ignores one important and rather obvious fact. Individuals, both heterosexual and homosexual are, as the Minister said, already eligible to adopt children under current law. It is not self-evident to me that widening the pool of potential joint adopters will result in a greater number of children being adopted. There is no evidence for that. There is

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no evidence that there are a lot of unmarried couples who are put off the thought of adopting merely because only one of them can legally become the adoptive parent. Widening the pool was the same argument used in a similar attempt to increase the number of foster carers some years ago. It has not succeeded and that should not surprise us.
We must consider the bigger picture. At present, there are roughly 11 million married couples in the United Kingdom. That is already an enormous pool of people. Only a tiny fraction of 1 per cent of those people would need to come forward as adopters who would not otherwise have done so for the Government's adoption target to be met. There is no shortage of potential adopters. The current problem relates much more to the off-putting adoption system and the failure of many local authorities to place children for adoption in the first place.
We should remember that the White Paper forecast an increase in the number of adoptions of 40 to 50 per cent once the Bill was enacted. That forecast relied on the eligibility criteria remaining as they are—in other words, limited to married couples and single individuals only. The Government's confidence that they will achieve their adoption target on that basis is one that we can share. Almost two years ago, when the House first debated the White Paper, the noble Lord, Lord Hunt of Kings Heath, said:
"Many of the problems that we currently face with the shortage of adoptive parents stem from the number of hurdles that they have to go through, which can lead to them becoming discouraged or finding the process very off-putting".—[Official Report, 21/12/ 00; col. 843.]
The noble Lord could not have been more right. That is exactly the problem.
We would do well to remind ourselves of some of the matters that we have been debating during the past few months. The Bill as a whole provides the means by which the problems referred to by the Minister can be tackled and, hopefully, eliminated. I think particularly of the nationwide rolling out of adoption support services. Some local authorities succeed at placing children for adoption at five times the rate of others. The Bill will spur the worst of those to raise their game to the level of the best. Achieving that does not depend in the least on extending adoptive rights to unmarried couples.
I said a moment ago—I have used this argument consistently—that, as a matter of experience, marriage provides the optimum environment for bringing up children. That statement is the focus of the second main argument advanced by the proponents of change. They maintain that to talk about generalities in this context is irrelevant because of what will emerge from the assessment process. Every couple wanting to adopt will be subject to rigorous assessment that, among other things, will determine the stability and durability of their relationship.
I have no problem agreeing that adoption assessments uncover a great deal of information about a couple that bears directly on their suitability as potential adopters. That is a vital procedure. I do not accept that assessment can provide a sure test of the
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stability and permanence of a couple's relationship. One distinction between marriage and an informal kind of relationship is the fact that when two people get married, they make a lifelong commitment to each other. For me, the commitment of those two people to each other is a prerequisite for their adopting as a couple, because it underpins the commitment that they will need to make as a couple to an adopted child.
Those who argue that the assessment process will flush out the degree of commitment that exists between unmarried partners seem to be saying that that is all we need. But, with great respect to them, I do not see how that can possibly be true. Two people who live together but who are not prepared to marry are implicitly signalling that they do not regard themselves as being in a permanent, lifelong relationship.
3.45 p.m.
Earl Russell: My Lords, as one who said in Committee that, before marriage, we had seriously considered whether to marry or to cohabit, I take offence at that remark, which I regard as entirely ungrounded.
Earl Howe: My Lords, I am sorry that I have upset the noble Earl, which I would never willingly do, but I think that he has misconstrued me. He will know, as do I, that statistically, 60 per cent of people who live together go on to get married. I do not frown on that in any way. The context in which I am speaking is that of the long-term stability given to an adopted child. I had no intention of offending the noble Earl's sensibilities.
Two people who live together but who are not prepared to marry are signalling that they are committed to each other only up to a certain level. They may say that they are committed to each other permanently, but they have not actually gone out to do the one thing that would prove that. So if we are looking for the best indicator of a couple's commitment to a stable and permanent relationship, would we rather place our reliance on the judgment of social workers or on something much more obvious and visible: the public commitment to a lifelong relationship evidenced by marriage? To do the former would be a risk, and an entirely unnecessary one
That brings me to a broader issue. One of the main difficulties at present with the idea of unmarried and same-sex couples being allowed to adopt is that those informal relationships enjoy no protection or underpinning in law. Those who believe in using the Bill to change the eligibility criteria for adopters must show why it is sensible to grant rights and responsibilities to unmarried partnerships without having defined the precise status of those partnerships in law.
A consultation paper on civil partnerships is currently circulating. The ramifications of civil partnerships, both legal and fiscal, are considerable, but it is perfectly possible that, if there were to be comprehensive and well thought through legislation on civil partnerships, it might provide the basis on

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which unmarried and same-sex couples could become adopters. At the moment, though, the necessary legal framework does not exist. If unmarried couples were allowed to adopt under this Bill, we would be preempting the outcome of the Government's consultation on civil partnerships in a major respect. The Minister in another place, Jacqui Smith, specifically warned about that last year. She said that it was,
"premature to commit to any changes until a comprehensive analysis of the issues and their implications had been completed".
She went on to say:
"We believe that it is better to consider adoption by unmarried couples in the wider context of partnership registration than in isolation".—[Official Report, Commons Special Standing Committee, 29/11/01; col. 383.]
The issue is especially significant in the context of property rights. Marriages can break down, but, if they do, the matrimonial court will decide on the distribution of the couple's assets in a manner that protects the welfare of the child to the maximum extent. If an unmarried or homosexual relationship breaks down, neither partner has an automatic right to the other's property. A co-habitee can be left with nothing. As legislators, we should not contemplate allowing a vulnerable adopted child to be caught up in the middle of that. Again, the Minister, Jacqui Smith, emphasised that very point in Special Standing Committee.
We need only read the recent report of the Law Commission on the subject to appreciate that the property rights of unmarried co-habitees are, at best, fraught with uncertainty. That is one of the main reasons why we ought to wait for a civil partnerships Bill, before seriously considering the possibility of granting adoption rights to unmarried and same-sex couples.
Lord Waddington: My Lords—
Lord Lester of Herne Hill: My Lords—
Lord Williams of Mostyn: My Lords, I suggest that we hear the noble Lord, Lord Waddington, first and then the noble Lord, Lord Lester of Herne Hill.
Lord Waddington: My Lords, I want my noble friend Lord Howe to help me with one small matter. Is it not clear that, when the Government introduced the Bill, they did not consider it necessary to extend the right to adopt to unmarried couples in order to see the purpose of the Bill fulfilled and more children adopted? Does my noble friend know of any new evidence that has emerged since the Government first introduced the Bill that would account for the Government's complete change of mind?
Earl Howe: My Lords, my noble friend is right. When it first entered the other place, the Bill was in the state that it was in when it left your Lordships' House nearly three weeks ago. I know of no evidence that might have persuaded the Government to change their
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mind. Indeed, I do not believe that, as a whole, the Government have changed their mind. We have not heard a statement from the Government that their policy has changed; we have heard statements from individual Ministers. That is a peculiar state of affairs.
Lord Lester of Herne Hill: My Lords, I listened with particular care to what the noble Earl just said about civil partnerships because of my Private Member's Bill. Am I right in thinking that he and his party said that they would oppose a civil registration scheme for heterosexual unmarried partners but favour it for gay and lesbian partners? Was not that the position taken by the noble Earl's party, and is it not still the position taken to this day?
Earl Howe: My Lords, the position of my party is that we will look constructively and sympathetically at any legislation proposed by the Government in this area. I can go no further; we await such a Bill.
The third main argument advanced by the proponents of change is the human rights argument. Last week, the Joint Committee on Human Rights published a report that concluded that the Bill, as amended by your Lordships, gave rise to potential violations of Article 14 of the European Convention on Human Rights, combined with Article 8, and of Article 26 of the International Covenant on Civil and Political Rights. I find myself at something of a disadvantage in the matter, since, unlike my noble friend Lord Campbell of Alloway and the noble Lord, Lord Lester of Herne Hill—two of the distinguished members of the committee—I am not a lawyer. Despite that handicap, I can say with considerable confidence that that report need not influence your Lordships' thinking to any great degree, if at all. I say that not simply because I have in front of me counsel's opinion, which concludes that the report is fundamentally flawed. It might be said that it is just another lawyer's opinion. I say it because it is clear to anyone that there is more than one way to interpret human rights.
For a start, which report of the Joint Committee are we to believe? Do we believe last week's report or the report published by the selfsame committee last December? I remind your Lordships that, at that time, the Bill proposed what was then—no doubt, still is, as I said—the Government's policy that only married couples and single individuals should be eligible to adopt children. That is exactly the policy that I advocate today. Last December's report concluded that the Bill contained no human rights difficulties at all. The Secretary of State, Mr Milburn, signed a statement of compatibility on the Bill as it originally stood, certifying that, in his view, the Bill was ECHR compliant. He would not have made such a statement, unless he had received advice from the Government Law Officers that it was safe to do so.
The Secretary of State may also have been influenced by the knowledge of our obligations under the 1967 European Convention on the Adoption of Children, which specifically restricts adoption to married couples and single individuals. That

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convention post-dates the signing of the ECHR, and the Joint Committee failed to mention it in its report last week.
Those who wish to change the Bill and the existing law have not made their case. The change that they seek is unnecessary, extremely risky and divorced from any coherent legal framework. For us to approve what the other place asks us to, when so much is at stake, would be thoroughly irresponsible. Therefore, I beg to move.
Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 26 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof, leave out from "House" to end and insert "do insist on their Amendment No. 26".—(Earl Howe.)
4 p.m.
Lord Lloyd of Berwick: My Lords, I rise early in the debate to correct something that I said on Report. I regret to say that it was not one of your Lordships who spotted the error but a member of the public—a Mr Jarvis—who seems to read my speeches with close attention.
I referred to a Scottish case in which the noble and learned Lord, Lord Hope of Craighead, gave the leading speech. The case concerned a very disabled boy, and the prospective adopter was a male nurse who was also a homosexual. At col. 879 of Hansard of 16th October. I referred to the case as a good example of an adoption order that had been made in favour of a single homosexual. I might have taken several other reported cases, but I chose to take that one. At the end of my speech, when I came back to that case, I inadvertently referred to the "prospective adopters"—in the plural. That was wrong. The law of England is the same as the law of Scotland, then as now. The only couples who can adopt are married couples. I apologise for that error; I hope that it has not misled any of your Lordships.
I am glad to have gone back to the case. On its facts, it was remarkable. The application was made on the express understanding that the child would be brought up jointly by the male nurse and his partner. The Lord Ordinary thought that that raised an important new point of principle, but the court disagreed. The case raised no important question of principle. It was simply a question of what was best for that child in those circumstances. Accordingly, the adoption order was made.
Rereading the case has made me wonder what the noble Earl's amendment is really about, at least so far as it affects homosexual couples. Is he intending to make it unlawful for children to be brought up by two homosexuals living together on the grounds so often heard that that will mean that as they grow up they will have two "mothers" or two "fathers"? If that is his intention, I must inform the noble Earl and the House that the amendment will not achieve that result. Until we turn to the amendment proposed by the noble Lord, Lord Jenkins, there is no amendment to exclude
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a single homosexual from the operation of Clause 50. If the amendment is passed—indeed, whether the amendment is passed or not—it will not affect in any way the validity of the Scottish case. As I think that he accepts, it will still be perfectly lawful for a single homosexual to apply for an adoption order on the basis that he and his partner will bring up the child jointly. However, if the noble Earl is content, as apparently he is content, that it should be lawful for a homosexual couple to bring up children together in that way—obviously where that is in the best interests of the child—what exactly is the advantage of making the adoption order in favour of one of those two, and not both?
That brings me to the question which the noble Baroness, Lady Strange, asked me on the previous occasion and which I failed altogether to answer, and to some of the points raised by the right reverend Prelate the Bishop of Winchester. The noble Baroness was correct. Adoption does indeed involve a legal relationship, as does marriage. I can understand, although I do not agree with, the argument that if as prospective adopters a heterosexual couple are unwilling to enter into one of those legal relationships, they should not be permitted to enter into the other.
How does that argument apply in the case of homosexual couples? Since homosexual couples cannot marry, it is surely better that they should both enter into a legal relationship with the child, rather than one only. They can only do that by both becoming adopters in law.
I agree with every word that the right reverend Prelate the Bishop of Winchester said about marriage and the importance of upholding marriage. But again how does that argument apply in the case of homosexual couples unless it is argued that single homosexuals should not be permitted to adopt, or perhaps only on the basis that they enter into some kind of vow of chastity? It seems to me that the question of homosexual couples and whether they should be allowed to adopt or not can have nothing to do with the question of whether we want to support the institution of marriage. It has everything to do with human beings as they are.
There is another point. Some of your Lordships may have professional experience—some perhaps even personal experience—of bringing up children who are severely disabled or damaged. I have no such experience myself. I suspect that it can be a daunting task physically, spiritually and emotionally. I can well imagine that a single homosexual might feel unable to undertake that task unless he can share the burden with his partner. Here I come close to the points made by the noble Lord, Lord Alli, in his remarkable speech three weeks ago.
If a homosexual couple are going to share the burden of bringing up a child, is it not better that they should also share the legal responsibility? Over and over again last time, and again I suspect today, I find myself asking: why on earth not? It may be that some of those who spoke or voted in favour of the amendment on the previous occasion did so because of

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a concern that there will be a flood of homosexual adoptions and that heterosexual couples will somehow lose out. I do not believe that to be the case for one moment.
I do not know what the number of current homosexual adoptions is: I suspect that it is quite small. It may be that there will be an increase in the number of those adoptions. Again, I would suspect that it would be quite small—perhaps very small indeed. Why do I think that? It is because the natural inclination both of those who take the first filtering decision in all adoption cases, and indeed of the learned judge, will be in favour, let us put it this way, of a heterosexual couple. At any rate, the judge will not make an order in favour of a homosexual couple unless he is satisfied—as any human being can be satisfied in matters of this kind—that that is in the best interests of the child.
Baroness O'Cathain: My Lords, why does the noble and learned Lord believe that married couples will be favoured automatically? If the Government's wish prevailed and they were automatically favoured, surely that would be discriminatory against heterosexual couples cohabiting or homosexual couples of whichever gender.
Lord Lloyd of Berwick: My Lords, it is important that we should get away from any notion of discriminating in the case of a married couple, an unmarried couple or a homosexual couple because that is not what happens in practice.
Baroness O'Cathain: My Lords, the noble and learned Lord has just said that. He said that in the filtering process married couples would be looked on favourably.
Lord Lloyd of Berwick: My Lords, that is so because a large number of all adoptions—I cannot remember the exact percentage—are heterosexual adoptions. That is bound to be so. However, I assure the noble Baroness, Lady O'Cathain, that what we are concerned with is not a question of discrimination; it is a question of finding the right people to adopt the particular child in question.
My point is that the actual increase in homosexual adoption—and I see no reason why this should not be the case—will not be great. I cannot say minimal, but it will not be great because whole number is not great. That is the position and if we can put that question on one side—and I ask noble Lords particularly on the Conservative Benches to try to do that—the question is: what is left?
What is left is the widening gap between those who are suitable to adopt, willing to adopt and able to adopt and those who are in need of adoption. There may be other ways of making a start in filling that gap—and in this very Bill we are making a good start in filling that gap—but we will make an effective impact on that gap only if we take what I argue is the
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most obvious course; that is, to allow unmarried couples to adopt by including them among those who are eligible to do so.
On that aspect, I agree with every single word spoken by the noble Lord, Lord Jenkin of Roding, on the previous occasion. However, with great respect, I do not agree with what fell from the Bishops' Benches on that occasion. I have no idea how many new adoption orders will be made if we widen the pool to include heterosexual unmarried couples. I have no idea, but, despite what the right reverend Prelates say, if there were only one unmarried couple suitable, willing and able to adopt one child in need of adoption who would otherwise spend the rest of his childhood in a children's home, that child's need must come first.
Although it has been said often, I need to repeat the fact that this has nothing whatever to do with the rights of unmarried couples to adopt. It has nothing whatever to do with the rights of homosexual couples to adopt. I regret very much the timing of the report of the Human Rights Joint Committee which can only muddy the waters. I will say nothing whatever about the contents of that report because we are not concerned with human rights in any shape or form. We are concerned with human needs; the needs of children to spend the rest of their childhood, if at all possible, in a loving home of their own.
Finally, I will conclude by quoting the very wise words of Lord Kilbrandon in a case which came before this House in 1977. I am pleased to be able to say that my noble and learned friend Lord Wilberforce was a party to that decision, although it seems a long time ago. Lord Kilbrandon said:
"it could easily be productive of injustice if one were to attempt any hard and fast rule as to the attitude which the courts ought to adopt, in custody, access or adoption matters, towards those whose sexual abnormalities have denied them the possibility of a normal family life. This is because it is not possible to generalise about homosexuals, or fair to treat them as other than personalities demanding the assessment appropriate to their several individualities in exactly the same way as each heterosexual member of society must be regarded as a person, not as a member of a class or herd. Naturally, in a family law context, the fact of homosexual conduct cannot be ignored, but no more can the consequences of taking it into account be standardised".
Those are very wise words and I hope that noble Lords will have them well in mind when we come to vote on these amendments.
4.15 p.m.
Lord Jenkin of Roding: My Lords, we have heard three very powerful speeches, particularly those from the Front Bench. They starkly showed up the differences of opinion which divided the House when we last debated the matter on 16th October.
The Motion which I have tabled with the amendment attached rejects this all-or-nothing approach. Both my noble friend and the Minister referred frequently to unmarried couples, drawing no distinction whatever between couples which consist of a man and a woman and couples which consist of either two men or two women. My Amendment No. 26AC, with Amendment No. 26AD attached to it, makes it clear that I agree with everything the Minister

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said about unmarried couples which consist of a man and a woman. On the previous occasion I used the word "heterosexual". I can only refer noble Lords to the note on page 6 of the report of the Human Rights Joint Committee to get a good laugh as to what that committee thought about the word "heterosexual". It was clearly wanting to lift the sheets to see whether they were at it. On the other hand, I reject the idea of the law opening the door to adoption by two same-sex people.
The noble and learned Lord, Lord Lloyd of Berwick, was honest with the House when he confessed that he had got one case wrong last time. I, too, got something wrong last time. When I rose to intervene in the closing speech of my noble friend Lord Howe I said that no noble Lord had supported my amendment and indicated that in those circumstances I would not feel it right to try to move it. I could not have been more wrong.
I was right about what was said in the debate; no speech was made in favour of my amendment. However, as a number of noble Lords may have observed during the Division on my noble friend's amendment, I was—and I use the word advisedly—besieged by noble Lords from all parts of the House expressing their dismay that I was not going to move my amendment. Some, I know, went into my noble friend's Lobby very much as second best. They would much rather have voted for an amendment as I then had it on the Marshalled List and as I have it now.
In the past two-and-a-half weeks since that date, many other noble Lords have indicated that my amendment would have their support. I have therefore been encouraged to re-table it and it appears on the Marshalled List as Amendment No. 26AD.
Last time it would have been open to me to move it, whatever the outcome of the first vote. I was not preempted. This time, due to the technicalities of the drafting of the Motions—not the amendments but the Motions—to agree or disagree, if my noble friend's Motion is carried, I will be pre-empted. The House will not have an opportunity to vote on the amendments that I have tabled. If noble Lords want to vote "yes" to an unmarried man and woman couple but "no" to a same-sex couple, it will be necessary in the first instance that my noble friend's amendment be not carried. If it is carried, I will not have a chance to put that question and seek the opinion of the House.
What about the case? I will try to be brief because I know that many noble Lords want to speak. The case for widening the circle of prospective adopters to include unmarried couples is based, as the Minister made very clear, on three propositions. The first is the need to find more stable families willing to adopt the difficult, older children and reduce the numbers in local authority homes. The state is not a good parent and anyone who has studied the Waterhouse report will have to say "Hear, hear" to that.
The second reason is that we live in a period of great social change in the patterns of family life. Sadly, a rise in broken marriages and a rising divorce rate are features of life today. Equally, there are many more
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long-term stable relationships where couples decide, for whatever reason, not to marry. I agree with the Minister that the stringency and thoroughness of the assessment process and its emphasis on the stability, continuity and commitment of prospective adopters will be able to sort out a great many short-term unmarried relationships—and we all know about that—from the long-term stable ones. If that process is carried out equally rigorously on unmarried couples and married couples, the risks of breakdown must be very comparable.
It does not help, as some noble Lords have said, to quote overall figures for the short-lived nature of unmarried unions because they include a very large number of young people who may live together for a while before they get married or live together and then move to another partner. We know that this happens. As I said on the previous occasion, noble Lords will have come across this kind of situation within their own families.
The third reason emphasised by the Minister is that single people in informal relationships can and do adopt—but it must be desirable that a child should stand in a legal relationship with both an adoptive father and an adoptive mother. I stress those two words. Adding unmarried couples consisting of a man and a woman to the pool of adopters available will achieve that, and we should accept that proposition.
I turn now to the second leg of my amendment, which states,
"but shall not cover couples of the same sex".
On Report, I quoted from a paper where a Barnardo's research officer argued that the Bill should be extended in the way that the Government appear to wish. She said that there,
"has been no research specifically on outcomes for children adopted or fostered by lesbians or gay men".
The noble Earl, Lord Russell, chose to interpret this as,
"no research at all on the effect on children of homosexual couples".—[Official Report, 16/10/02; cols. 890–891.]
But that is not what I said. I recognise that research has been carried out where one of the partners in a same sex relationship is the natural parent of a child who then goes on to live in a gay or lesbian household, but one of the parents is already a natural parent of the child.
Earl Russell: My Lords, having already made my apologies to the noble Lord in private for misinterpreting him, perhaps I may repeat them in public.
Lord Jenkin of Roding: My Lords, I am deeply grateful to the noble Earl. I thought it right to mention this to him beforehand. I am glad that we have resolved the differences.
There has been research on children where one of the parents is the natural parent, but there has been none on children adopted or fostered into such households. The question, therefore, is whether we really need to open this door.

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Of course, as the noble and learned Lord, Lord Lloyd, said, it is open to the courts to approve adoption by one partner in a same-sex relationship. I agree with him, too, that this very rarely happens; it is not the most common event. Indeed, in the hierarchy—and I know that some adoption agencies reject the concept of a hierarchy—that would come at the bottom of the list. It would be married couples first and same sex relationships at the bottom.
But the case made by the noble and learned Lord for giving both partners in a same sex relationship the legal status of adoptive parents is very much weaker than the case where there is both a father and a mother. I cannot be convinced that the well-being of an adopted child with two fathers or two mothers is significantly enhanced by going through the motions of giving them both legal status. I do not believe that the country is ready to accept that adoption by same sex couples should have legal equivalence—for that is what is being sought—to adoption by a couple consisting of a man and a woman. It is for that reason that if my amendment is called, as it may or may not be—
Lord Ackner: My Lords, before the noble Lord sits down, does he recall that at the opening of my speech on Report I apologised for being slow on the draw in not having asked him but having asked the noble and learned Lord, Lord Lloyd, whether or not this proposal would be fatally flawed by litigation in this country under European human rights legislation? He was not keen on answering that question. I therefore said that I looked forward to hearing the noble Lord's answer in due course because he had addressed the House at length on an amendment which he did not move.
In the interim, the noble Lord obtained from the Christian Society an opinion of counsel that his proposal would be fatally flawed. He handed that to me—I was very grateful—and then, at the very end, the noble Lord withdrew his amendment. Is not the reason for the noble Lord withdrawing his amendment on the previous occasion that he was persuaded by the opinion of counsel, provided to him by the Christian Society, which he read and then handed to me before making his concession and withdrawing his amendment?
Lord Jenkin of Roding: My Lords, I can answer the question of the noble and learned Lord, Lord Ackner, by saying no. That was one opinion, but I spent the weekend—perhaps rather fruitlessly—reading not only the report of the Joint Committee on Human Rights but the whole of the judgment in the Fretté case in the European Court of Human Rights on which the legal adviser to the Joint Committee based his advice. By Sunday evening I had come to exactly the same conclusion as the Government: we should not pay any attention whatever to the Joint Committee's report. I believe it to be nonsense and full of factual errors. The fact that in the other place the Minister devoted only eight lines of her speech to the issue at the end of a very
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long debate—the Minister in this House has not mentioned the report at all—would indicate, I suggest to the noble and learned Lord, Lord Ackner, that we can leave aside that consideration. This matter can be decided in the courts in this country under existing law. Of course such matters are open to challenge, but like my noble friend I do not believe that we should consider that factor as determining our position.
The other place has rejected my noble friend Lord Howe's proposition on at least three occasions, most recently when it rejected the amendment passed by this House on 16th October. Why should we suppose that if we send it back again it will not meet the same fate? If we try to do that, surely we risk Mr Speaker saying that there is deadlock and the Bill will fall. None of us wants that; we all agree that it is an extremely good Bill.
4.30 p.m.
Lord Elton: My Lords, perhaps the Speaker would not have to do so if the Government wished to retain the Bill and not lose it by agreeing to your Lordships' amendment. This is rule by the clock.
Lord Jenkin of Roding: My Lords, having heard the Minister and read the debate in another place, if my noble friend thinks that that is what they are going to do he may be misleading himself.
But if, as I hope, my noble friend Lord Howe's Motion is not carried and I can move my Motion, we shall be offering the other place a compromise that the country as a whole would approve and that the Government would be wise to accept.
The Lord Bishop of Chelmsford: My Lords, we all agree that adoption should be for the benefit of children, not adults. So the Government's commitment to put the child's welfare at the centre of the adoption process must be strongly supported.
As the noble Lord, Lord Hunt, reminded us, too many children are remaining in local authority care, which is sometimes inadequate and invariably impermanent, who deserve the opportunity to be welcomed into a loving, stable and committed home environment. The current shortage of adoptive parents, often stemming as we have heard from the number of hurdles in the adoptive process that have to be overcome, needs to be reversed. Much in the Bill tackles that.
The Minister referred to Bishop Jim and "Thought for the Day". I hope that he will continue to listen to "Thought for the Day" and be strong in his support for its retention. Bishop Jim and I agree on many matters, but on this issue we are at variance. Many in this Chamber voted against extending the opportunity for joint adoption to unmarried couples, both heterosexual and same sex, because we believe that it would be disruptive to the aims and objectives of what is otherwise an excellent and timely Bill.
If the welfare of the child is the paramount concern, we need to take seriously the damage that could be incurred by a child placed with a cohabiting couple.

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All potential adoptive children have an in-built vulnerability, including an understandable inevitable confusion of origin and identity, often stemming from deep feelings of rejection.
For many years I have been closely involved with adoption issues. I am convinced that there are significant risks—
Lady Saltoun of Abernethy: My Lords, does the right reverend Prelate believe that it is better for a child to be brought up in care than by an unmarried couple, however short of ideal that may be?
The Lord Bishop of Chelmsford: My Lords, that is a persuasive point that has been made repeatedly. But there must be particular emphasis on encouraging more married couples to come into the adoption pool.
I am convinced that there are significant risks to a child's psychological development in growing up with two parents of the same gender, just as there are risks of a different but no less real kind when the adoptive parents are not formally committed to staying together.
It is argued that because the majority of those whose life chances would be vastly improved by adoption are older children and many have special needs, the pool of potential adopters should be widened to include cohabiting heterosexual and same-sex couples. But surely that is not a convincing argument. Older adoptive children often require and deserve even greater assurance of stability and security which the long-term life-long commitment of a married couple can best provide.
The sad reality is that there is only too clear evidence that, notwithstanding the rates of marriage breakdown, heterosexual relationships short of marriage are statistically much less secure and more prone to dissolution than marriages, as are same-sex relationships.
It can too easily be forgotten that the clause in the Bill stating,
"The paramount consideration must be the child's welfare",
is completed with the words—
Lord Eatwell: My Lords, the right reverend Prelate referred to an argument used many times that unmarried couples have less stable relationships than married couples. Perhaps he might consider the following case: two couples who have had exactly the same history; each person had two short-term serious relationships and then settled down for life. One couple have settled down for life by marrying; the other couple have settled down for life as partners without marrying.
Using the right reverend Prelate's argument, statistically the married couple would appear to be far more stable because we measure their stability only when they are married, whereas the couple who decided not to marry would be defined as not stable because they have each had three unmarried
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relationships. Yet we know that the history of the two couples is exactly the same. Is not the right reverend Prelate's statistical argument bogus?
The Lord Bishop of Chelmsford: My Lords, that is a scenario to which I can respond with some warmth, but the argument is essentially flawed. The married couple are making a public declaration in law to be committed to one another for life. That is the distinct difference.
In the previous debate on the issue I said that not only do I believe that the Judaeo-Christian ethic is clearly contrary to any change in the present law on this issue, but it also emphasises that it is within the context of the committed heterosexual relationship of marriage that the paramount interests of the child are best served. We spoke of children being neither pawns nor trophies. Less still should they be in the front line of what is effectively an experiment in social engineering. They need and deserve to be cared for and nurtured—
Lord Warner: My Lords, can the right reverend Prelate explain to us why this experiment in "social engineering" is so significant when we have an assessment process that is extraordinarily rigorous? Can he also explain how that assessment is a higher risk than the public pledge that both he and the noble Earl have made much of, which has a 40 per cent failure rate in terms of marriages that break down?
The Lord Bishop of Chelmsford: My Lords, the noble Lord makes an important point. However, I still resist that view. I believe that the phrase "social engineering" is valid because we are moving into uncharted territory with the direction that this amendment is taking. I am concerned that that basis should be safeguarded as much as possible.
Children need and deserve to be cared for and nurtured, ideally within a home environment in which the complementarity of the sexes is expressed by a male and a female parent, committed to one another—
Baroness Billingham: My Lords, I apologise for interrupting the right reverend Prelate, who speaks with great authority. However, from my personal experience, I have to check him on one point. I do not know how many Members of this House were brought up in care, but I was. If we put obstacles in the way of a child in care being taken into a happy and loving home, whatever origin you are talking from—whether Christian, or whatever—surely that is totally cruel and unjust. I hope that that view will be considered. Looking back over 50 years, I know how children in care are feeling. Frankly, if we are talking about depriving them of an opportunity to be taken into a loving and stable home, that would be appalling.
The Lord Bishop of Chelmsford: My Lords, I understand the noble Baroness's point of view. Earlier in my address, I mentioned that I have much personal involvement, interest, and concern with adoption issues.

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This Government have consistently stated that they want to sustain the particular position of marriage as the fundamental reference point for family life and adult relationships. I cannot see how Parliament can responsibly allow the committing of children and young people for life to couples who are not committed to each other, publicly and in law, for life.
4.45 p.m.
Baroness Walmsley: My Lords, I rise to support the Government's group of amendments, and to oppose those tabled in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Jenkin of Roding, which I believe to be clearly discriminatory.
As we have said throughout these debates, the main consideration in regard to the adoption of children is their well-being. To achieve that for the maximum number of children, we must widen the net to attract all those who would make good adoptive parents. That is because it is a fact that children in public care fare a great deal worse than the majority of children in their own homes, whether with their natural or adoptive parents. Children with parents—any parents—do better at school and their physical and mental health is better. They develop better social skills and they have a much lower incidence of getting into trouble with the law. So we have a duty to find them loving parents and to ensure as best we can that their home will be stable and their environment suitable.
To leave a child in care is to condemn him to an awful life. We should not, as was the case with the noble Earl a short while ago, be comparing the lives of children in married families with those in unmarried families. We should be comparing the lives of children with some kind of family with those in care with no family. We all know which is better. Clearly, there are some people who should never be allowed to look after children—people who do not understand children's needs, and those who neglect or abuse children. Some of these people are straight, some are gay, some are single, and some are married. However, those who have the qualities that make a good parent are also a mixed bunch. Some are gay, some are straight, some are single, and some are married. Marital status and whether a person is gay or straight are unreliable predictors of parenting qualities.
What we are charged with doing in this Bill is setting the legal and regulatory framework within which individual children can be found the best possible family for them. Once prospective adopters have come forward, we have in place a very rigorous process by which they are evaluated to see whether they would be the right parents for the child. However, sadly, the amendments of the noble Earl, Lord Howe, and those of the noble Lord, Lord Jenkin, seek to remove a whole raft of good people from even being considered.
Let us turn to some of the objections—
Lord Davies of Coity: My Lords, I am most grateful to the noble Baroness for giving way. Perhaps she
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could answer this question. I understand the distinction between unmarried heterosexual people and homosexuals. However, I assume that the basis of the relationship between unmarried couples is love, and that the reason for adopting a child is love. My understanding of love has two major foundation stones: the first is sacrifice; and the second is responsibility. If that is the basis of love, why do not unmarried couples make the sacrifice in order for the child to be adopted?
Baroness Walmsley: My Lords, I am grateful to the noble Lord, Lord Davies, for his intervention. However, I shall address some of the issues about unmarried couples a little later in my presentation to your Lordships. Many couples express love for each other and do so, as they hope, for life in just the same way as married people do. They do it in their own way. They live their lives in their families in their own way. I do not make any value judgment about that. I do not believe that that has any effect on their ability to love and care for a child.
I turn to some of the objections that have been raised to unmarried couples being allowed to adopt. Clearly, it is not the unmarried status itself to which the noble Earl, Lord Howe, objects, or he would have proposed an amendment to stop single people adopting, as they currently can. The noble Earl based his argument on certain statistics relating to the stability of the relationship and said on Report, and also today:
"Nothing that has been said against my position today has refuted the validity of the statistics that I quoted".—[Official Report, 16/10/02; col. 909.]
I am about to refute those statistics.
The noble Earl, Lord Howe, uses figures from the Office for National Statistics to claim that unmarried couples are less stable than married ones. Stability, of course, is desirable in an adoptive home, but we are talking about particular couples adopting particular children. No one can predict which partnerships will break up. However, let us look below the surface of these statistics to see whether they are valid. We find that they ignore the fact that many cohabitees never intended to stay together for ever in the first place, or they would have got married. No one asked them about that. Anyway, such people are highly unlikely to apply to adopt and, if they did, they would most certainly be rejected.
Neither did the statistics detail the age of the couples. However, we do know that a critical factor in the stability of a union, regardless of whether it is a cohabitation or a marriage, is the age of the couple when it started. Young people tend to split up more. The Performance and Innovation Unit report on adoption shows that the average age of people applying to adopt is 35, which is well past the age where married and unmarried unions are frequently unstable.
I turn to same sex couples. The noble Earl, Lord Howe, claims that their relationships are even less stable. He quotes the Christian Institute's claim that the average length of a closed gay relationship is 21 months. What the organisation did not say was that its

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research was conducted for the purpose of developing sexual health strategies. It was deliberately conducted in places where younger gay men were considered likely to go for the purpose of sexual encounters; for example, pubs, clubs, and cruising areas. If a study were conducted for the same purposes with a heterosexual population in pubs, clubs and red-light districts, it might result in a similar finding. However, nobody would try to suggest that the results were typical of the heterosexual population as a whole. If they did, they would be rightly condemned.
On the subject of statistics, I shall address the claim by the noble Baroness, Lady O'Cathain, that children of gay parents have lower educational achievement. If that were good-quality evidence it might sway some people. It is important, therefore, to look at the quality of the study. It is of poor quality. The book from which the noble Baroness quoted, Children as Trophies? Examining the evidence on same-sex parenting, makes extraordinary claims that do not stand up to close scrutiny. For example, the author states that,
"the lifespan of homosexuals is so much shorter than heterosexuals"
without bothering to explain that his study is based on a cohort of young men who are HIV positive and whose life expectancy is eight to 20 years shorter than that of their non-HIV-positive counterparts.
The study does not appear on any list of academic research that has been subject to peer review. In this country, we do not give much credence to research studies, published or not, that have not been subject to rigorous peer review. It must be noted that all such research carries an inbuilt bias in that the legislative background is so hostile that, while gay families do exist, they do so quietly. When civil partnerships were debated, numerous examples came to light of gay partnerships that had lasted for 30 and 40 years. It must also be noted that around 20 per cent of foster parents are unmarried. Should they not be allowed to adopt a child that they had been fostering successfully? Must that child be moved elsewhere?
Another argument against allowing unmarried or same-sex couples to be considered by the courts as adoptive parents is that the number of adoptions is rising and that 90 per cent of people who enquire about being adoptive parents do not make it through to approval. Could we not solve the problem by letting more married people through? First, I would not want to let any unsuitable people through the process just because they happened to be married. Secondly, the 90 per cent figure relates to the percentage of respondents to National Adoption Week campaigns who did not get through. But only 36 per cent of the people who responded were interested in becoming adopters; all the others had different enquiries. A reliable fact is that 90 per cent of people who get as far as going before an adoption panel are approved. It is a rigorous process.
However, there are still children in care. Barnardo's and other respected children's charities say that some children are never even placed for adoption because it is known that there will be no adopters for them. So the number of children who really need good homes is even larger than the number placed for adoption.
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There are currently 55,000 children in care. Every year, 5,000 children are looking for an adoptive family and most of them remain in care, where their future is highly likely to include lack of educational attainment, clashes with the law, mental illness and homelessness.
My reason for exposing the failings of these so-called statistics is that children deserve better from us than clever debating ploys and twisted statistics They must certainly not be used as bait for marriage. The noble Earl, Lord Howe, seems to rely a great deal on statistics. If the situation were to change whereby it could be proved that unmarried couples stayed together longer than married ones, would the supporters of his amendment want to change the law to allow only unmarried couples to adopt? What if it could be shown that Muslim or Jewish marriages lasted longest? Would they claim that only Muslim or Jewish couples could adopt? 1 think not. That would be ridiculous.
Some people worry that children who live with gay parents are denied either a mother-or father-figure. So, too, were my children during part of their growing period, but there were plenty of other adults to whom they could relate. If that is such a critical point, why have we been allowing single people to adopt for so many years? Should we take away the children of widows and put them with an adoptive couple? No family is an ideal family, but every loving family will try to fill whatever gaps it has in some way. Society is very mixed, and people play many different roles in the lives of children.
Another objection to same-sex couples being allowed to adopt is that their children will get teased or bullied at school. We know that children can pick on those with a difference, even those with red hair. But some children have parents who wear different clothes, some have a visible disability and some are of a minority ethnic background. We do not condone bullying on those bases; neither should we accept it on this one—I assure noble Lords that teachers do not and will not. Teachers these days are a very mixed bunch themselves, but all are trained to be sensitive to the special circumstances of each child. No longer do they assume that all children have a mummy and daddy at home, for example. It is insulting to the teaching profession to assume that teachers could not protect the adopted child of unmarried or same-sex parents from bullying.
Some people have voiced concern that children placed with gay adopters would be abused. There is no evidence that this is likely, and, anyway, such concerns are far too narrow. We should be concerned for the safety and welfare of all children, not just those who are adopted. Many high-profile cases of abuse involve step-parents, but we do not, therefore, conclude that all step-parents are evil or incapable of caring for children and we should not make such a crude assumption about gay couples either.
Anybody deemed suitable to care for children under this legislation will have had to prove that fact to social care and childcare experts, to adoption panels and ultimately to a judge. The Bill does not confer on

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anyone the right to adopt a child. It simply enables a wider group of good people to be eligible to have their suitability to adopt assessed by this rigorous process.
We on these Benches believe the changes to adoption law in this Bill are right, because children should not be political or ideological pawns. But they deserve the best parents who can be found: parents with infinite patience, stamina, a commitment to the child's education and good health, honesty, a sense of fun and a moral framework. Those qualities are not the preserve of married people; they are shared by unmarried, including same-sex, couples. Children who have had the worst start in life deserve the best possible support for the rest of their lives. They do not just need parents; they need the best parents. This Bill allows us to find more of those.
5 p.m.
Baroness Hayman: My Lords, I am grateful to the House for allowing me to speak in this debate, particularly because I have not participated so far. However, I have followed the debate throughout the stages of the Bill.
One of the reasons that I wanted to speak at this stage was my growing dismay at the misrepresentation, particularly in the past 24 hours, of the terms on which this debate has been conducted. It has been misrepresented as a debate between those who are interested in the rights of adults and those who are interested in the welfare of children. I exempt the noble Earl, Lord Howe, from my comments, because he specifically said the opposite this afternoon. But the description of the debate has been caricatured in that way, as anyone who has listened to, or read, the proceedings in Grand Committee, on the Floor of this House and in another place would bear witness. This is an issue not about rights but about responsibilities. We have a strong and heavy responsibility, because we have the chance to influence the future of some of the most vulnerable and damaged children in our society today—those in the care system. It is an issue in interpreting what is best for those children, where there is room for those with similar objectives to hold very different views. That extends not only across parties, but, as the right reverend Prelate has accepted, to past and present members of the Bishops' Bench. It is possible to have very different views and still be committed to the welfare of children.
On Report, the noble Baroness, Lady O'Cathain asked:
"What is the justification for amending the Bill in the other place? Is it political correctness? Is it social engineering? Or—perish the thought—is it the permanent downgrading of marriage and the family?".—[Official Report, 16/10/02; col. 882.]
My answer is "No, it is none of the above". I rather resent the assumption that those could be the only reasons for so doing. I resent that not only personally, but on behalf of all those adoption agencies and all those organisations concerned with children who, after long and deep experience and consideration, have said that they believe that this is the right way forward.
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I want to take a few minutes to examine our responsibilities. The noble Earl ended by saying that we would be irresponsible to agree with the Commons in what they have said. I should like to explain why I believe that our responsibilities lead us in that direction. We have responsibilities as Members of an unelected second chamber. There is no generality here. In view of what I shall say later, I would be the last to suggest general rules. We exercised our right to ask another place to think again. They have thought again. They have had a very thoughtful debate with some excellent contributions that noble Lords will have read. Overwhelmingly, on a free vote—I know a few dog licences were issued, but it was largely a free vote—they rejected our amendment and said that they believed the original amendment made in the Commons was correct.
There are many strengths about this House. I have had the privilege to serve in another place and here. I have to say that I rather enjoy being here better than being in another place. However, one thing that we do not have is the privilege of the responsibility of direct representational obligation. We should listen very carefully to those in another place who have those obligations on issues such as this.
We have another responsibility—a responsibility as legislators to provide coherent and intellectually robust legislation. If we do not accept the amendments, I do not believe that we shall fulfil that obligation. In a way, it is being suggested, with a nudge and a wink, that we do not have to worry about this issue, because adoption by same-sex couples already happens, as does adoption by unmarried couples. It happens de facto, because single people can adopt. They are allowed to adopt only after not only they themselves, but their partners, if they are in a partnership, have been assessed as suitable parents. The only thing that we should not do is allow that de facto state to become de jure. That does not seem to be a responsible legislator's position. It seems to lay down that we prefer children to be legally in single-parent families rather than in two-parent families. That sits very ill with the commitment to the two-parent family that most of those who have articulated a commitment to marriage have spoken about.
I do not know how many of your Lordships read the article in the Guardian about the educational disadvantage suffered by children in institutional care. It struck me strongly in the context of the idea that children would somehow be disadvantaged, made fun of or stigmatised at school if they had parents who were not married or parents who were of the same sex. I am a devotee of marriage. I have spent the past 25 years bringing up children in inner London. I have seen an enormous variety of parenting from my children's friends and schoolmates. I have seen parents who were not married, step-parents, parents who were single and parents who were gay do extraordinarily good jobs of parenting. I know in my heart that if it were me—and I suspect the same is true of many children from institutions—faced with the choice of

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who should go in and bat for me at parents' evenings, I would rather have two parents of the same sex than one institution.
That is the dilemma that we have to consider. We have to look at whether we do a grave disservice to children who are adopted by a single person by robbing them of an element of security if that single person dies, by putting their legal status in a vulnerable position and by somehow saying to them that their parents are less good and qualitatively different, because they have not made that public commitment through a civil or religious marriage that they should have done, or because they are gay and are not able to do that. That is a terrible message to give to children who are vulnerable. It seems to fly in the face of looking at the individual.
That takes me to my third set of our responsibilities tonight. Those responsibilities are towards the children who are going to be assessed for potential adoption. We must provide the best that we can for those children. It is an issue about widening the opportunities for those children to be adopted. We have already heard about the disadvantages and risks of institutional care and the difficulty of placement. However, it is not only about increasing the numbers. As noble Lords have argued, it would be possible to increase the numbers overall simply by increasing the pool of married applicants. We are not talking just about quantity; we are talking about quality. We are talking about the right placement for every individual child. It has been taken as Gospel and as a truism on all sides of the House that children are best brought up in a two-parent family with a male role model and a female role model; a two-parent family that is there before they are conceived and continues throughout their life. That, instinctively, is what I believe. I am no radical in many areas. I am no radical as regards assisted conception, for example. However, we are not talking about children who do not exist; we are talking about children who already exist and whose lives are already not ideal. A friend of mine always used to say that those with happy marriages lead sheltered lives. However, the children we are discussing do not lead sheltered lives; they have experienced the opposite. They deserve their individual circumstances to be considered.
We have talked about the gold standard but throughout this debate I have not heard anyone argue that there are not a few children for whom, even if a married couple were available, one single adopter would be better. Some children have been so damaged by their experience that the view of social workers, of assessment panels and of judges is that the best family for them would comprise one parent giving them one-to-one care. without a partner and without other children. Those children are the exception to the rule, but there are exceptions to the rule that married parents always produce happy children. There are exceptions to every rule.
The fundamental reason I support the Commons in asking us to think again is that I consider that we sell these children short if we look at them only in terms of statistical probabilities. They are not statistics; they
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are individuals, each with different troubled backgrounds. Can we offer them only a rule of thumb and a best guess as to what a category of adopter would do? Are we to rule out of consideration the possibility that there are some extraordinary people out there who could offer those children the best placement? That seems to me a terrible dereliction of duty. It is not a question of social engineering. To hold a sword over people's heads and say that they can adopt only if they agree to sign on the dotted line and marry, seems rather more like social engineering to me than what I am suggesting.
The nub of the issue is whether we tackle the problem of adoption for some of the most troubled, vulnerable and damaged children in our society on the basis of statistical probabilities as regards a group of whom neither they nor their potential adoptive parents are typical, or we give them one thing to make up for all that they have suffered; that is, the right to have their case individually assessed against the widest range of people who could offer the best hope for stability—the chance to pursue happiness. For me that is what the issue is about and that is why I hope that we shall not be obdurate in our views tonight.
5.15 p.m.
Baroness Blatch: My Lords, I shall try to be brief. I say to the noble Baroness, Lady Hayman, that not one person who supports my noble friend on the Front Bench has ever, throughout the whole of the passage of the Bill, argued that people should be invited to sign on the dotted line and, simply because they are married, should forgo the rigorous process of assessment. I shall not give way to the noble Baroness as I have made the point and the noble Baroness has made hers.
The Bill as introduced in the House of Commons was indeed deemed to be compatible with human rights obligations. Then came the amendment proposed by a Back-Bencher in another place. The House of Lords returned the Bill to the House of Commons in its original form. Now we hear from the Joint Committee on Human Rights that if the House of Lords amendment is accepted, the Bill would be incompatible with our obligations under the human rights legislation. The Minister in another place appeared to have dismissed the conclusions of the Joint Committee; in other words, I assume that the Government stand by their original view that the Bill as originally introduced into the House was indeed compatible with human rights. I must ask the Minister for clarification. The Government cannot have it both ways. If the Bill was compatible with human rights without the Back-Bench amendment in another place, how can it now be compatible with it?
The Minister invoked the bishop who spoke on the Radio 4 programme this morning. Bishops come in many shapes and sizes and have many varying points of view. We heard a wonderful speech from the right reverend Prelate the Bishop of Winchester and one with a similar view from the right reverend Prelate the Bishop of Chelmsford. I predict that another bishop will speak before the end of the debate who may

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express a different view altogether. We can all select our favourite bishop to make our case. I make no secret of who my favourite bishops are.
In 1998 a Labour government Green Paper carried the following words,
"marriage is the surest foundation for raising children".
In February 2000, at a No. 10 Prime Minister's Office briefing, the following was reported. Responding to questions about the draft adoption Bill drawn up in 1996 by the previous government, the Prime Minister's Office said that it had been drawn up under the last Administration to address some of these issues of adoption. However, presumably because of the election, it had not been progressed further. The Labour government were seeking to deal with some of the hurdles which made it very difficult and very demoralising for couples who, for the best of reasons, were seeking to adopt children. Questioned whether some of the difficulties included, for example, white couples trying to adopt black children, the PMOS said that, like gay couples trying to adopt children, this was a side issue. The Prime Minister believed that children were best brought up in a stable relationship with a mother and a father. The PMOS stressed that we were talking about the hurdles in the way of adoption. It was important not to go down side roads.
Then in July 2000 the Prime Minister's own review of adoption stated at paragraph 3.76 on page 35:
"What was clear from our discussions with agencies was whatever effort was put into advertising, there was a huge dropout rate from initial enquiries to the number of approved adopters. As a general rule-of-thumb, 1-in-10 of initial enquiries would result in an approved adopter".
That is only 10 per cent of those who set out to adopt. We know many of the reasons for that as they have been aired throughout our debates. Some would-be adopters are put off as they have not thought through the massive responsibility of adopting a child. Some are rejected on spurious grounds of suitability. Others, sadly, drop out because of the response they receive from some social services departments and/or adoption agencies which, according to many, are unfriendly, unsupportive or even insensitive. Many drop out because of the inordinate time that it takes to see the process through to adoption. Those points are all raised in the Prime Minister's own review published in July 2000.
I, and many others, have been accused of exaggerating those points. Therefore, I hope that I may be allowed to tell the House about a young girl whom I met only a week ago. She is a young officer in the Royal Air Force. She has been married nine years and would like a child. Adoption was suggested to her. However, she said that she could not possibly go through that as the group captain with whom she works and his wife went through the most traumatic and long process of trying to adopt. They were turned down simply because they were service people and it was likely that they might be posted around the country. As a service wife, I point out that almost all the service people whom I came across made
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absolutely outstanding parents. The fact that from time to time we were posted should not be a reason for not allowing such people to adopt.
I turn to the issue of heterosexual unmarried couples and the point raised by my noble friend Lord Jenkin. I agree with those who argued that my noble friend's amendment would involve unacceptable discrimination and I shall not vote for that amendment tonight.
Adopting a child is a very serious undertaking for any couple. The process is, and should be, rigorous. Couples have to meet the criteria that are set out in the Bill. However, one must question a couple who are not even prepared to make a legal commitment to each other. What security does that offer a child?
A lady on television last weekend said that she did not wish to be forced to make a commitment to marriage before God. No one is forcing anyone to make such a commitment before God, although that is what I personally should prefer. The couple can marry with little or no pomp and ceremony. My serious point is that a couple who are prepared to make a legal commitment to each other through marriage substantially improve the security and stability of the child.
Emotionally damaged children require love, stability and security. All the evidence shows that cohabiting heterosexual couples and same-sex couples may also love. However, they do not offer the same level of security and stability as married couples; security and stability are so lacking in the lives of many of these children. One partner of a same-sex or even an unmarried couple can so easily simply walk away from the relationship. There is no security there for the child.
Much has been made of single adoptive parents. The Minister knows and I know—and so does anyone who has anything to do with adoption—that such cases are very exceptional indeed. We have heard of one exceptional case; I happen to know a little about it, but not as much as the noble and learned Lord. The relationship between the medic and the child was exceptional and right on that particular occasion. That was a major deciding factor in the case. Very few children are placed with single people.
I shall give another example, which may explain why the provision has not been removed from the statute book. A couple who fostered a child for two years—this is a true story—decided during the period of fostering that they would like to start adoption proceedings, and they did so. However, just before the court order made that a legal proposition, one partner died. The adoption eventually went through and the single parent was allowed to keep the child. By that time, there was a particular relationship.
Much has been made of the need to widen the pool of would-be adopters. I agree with that aim but, as I have already said, the effect of the Bill, which is supported by most of us in this House—certainly by most of us on these Benches—will be to widen the pool not of people who simply get married, as the noble Baroness, Lady Hayman, said, but of those who are

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married and who go through the rigorous process. The system will be more transparent, there will be an appeals system to deal with those who believe that they have been wrongly rejected as suitable parents and there will be more support for those who adopt children, particularly the more challenging children. The issue of widening the pool for adoption has already been addressed. It would be wise for all of us to see how that works.
My motivation, and that of those who support my noble friend Lord Howe, has nothing whatever to do with being anti-homosexual or anti-cohabiting couples. Too much of this debate—I shall incur the wrath of the noble Baroness by saying this—inside and outside Parliament has been about lifestyles and the rights of adults. I have heard it said on too many occasions that we are creating two tiers of adoptive parents. That is about the rights of those people, not about the rights of the child.
I am unequivocal in my support for my noble friends Lord Howe and Lady O'Cathain. I support the well-being of children. Some of them are damaged emotionally, physically and/or mentally. They should have the greatest stability and love. In the words of the Prime Minister, the surest way of achieving that is to place a child in a family with a mother and a father.
The Lord Bishop of Oxford: My Lords—
Baroness Howarth of Breckland: My Lords—
Lord Williams of Mostyn: My Lords, perhaps we should hear from the right reverend Prelate.
The Lord Bishop of Oxford: My Lords, I very much respect those who wish to strengthen the role of marriage in society, and I share that aim. In particular, I share the commitment of my friend the right reverend Prelate to marriage and support his work with adoption agencies.
It may be true that we have our favourite and least favourite Bishops. One of the good features of this House is that we can all listen to rational argument and, I hope, be persuaded by it. I listened with particular attention and interest to the speech of the noble Earl, who said that he had looked at the arguments as rationally as possible. I honestly believe that it would be difficult for his case to be put more strongly and persuasively than he put it.
However, perhaps the noble Earl will agree that some of his arguments were stronger than others. First, we can all agree that cohabiting relationships are statistically likely to last less long than married relationships as a general rule. The noble Earl rightly devoted most of his attention to that particular, special, selecting group of people who are willing to adopt, particularly among the group of usually older children who often have special needs. He argued, as did my friend the right reverend Prelate and the noble Baroness, Lady Blatch, that if they were going to commit themselves to a child, they should first show their commitment to one another in a public
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declaration. I take that point seriously. However, that applies to two different categories of people in two very different ways. Gay and lesbian couples are simply not able to make a public legal commitment to each other in this country at the moment. The noble Earl's argument falls in relation to that group of people. We may wish that the situation were otherwise, but that is the case. They are not able to make a public legal commitment to each other.
Secondly, some cohabiting heterosexual couples have genuine conscientious objections to getting married. Perhaps they have been seared by the breakup of their parents' marriage or shattered by the breakup of their friends' marriages. They honestly believe that their relationship is more likely to last if they do not commit themselves to marriage and simply commit themselves in love to one another. We must respect the conscientious objection that certain people have to marriage.
When we consider the kind of couple who might want to adopt children in that situation, we are considering a very special kind of couple and a very particular kind of commitment. As has already been pointed out, the average age of such couples is likely to be about 35. To use the language of the old prayer book, they are not going to enter into adoption unadvisedly, lightly or wantonly; they will do so after a great deal of serious thought and only with the assurance that they can commit themselves in the long term to each other and the child. With all respect to the noble Earl, I do not believe that in either of those cases his arguments are finally persuasive.
Thirdly, the noble Earl argued that this legislation will not widen the pool, as has been suggested on a number of occasions. In response, I can only say that 382 agencies, which are most concerned with this issue, believe that it will widen the pool. They include Church of England and Catholic agencies. Therefore, the people who are most concerned with this issue, who are most committed to it and who work with it day by day believe that the legislation will widen the pool.
Fourthly and finally, the noble Earl pointed out that it might be more sensible to wait for greater clarity on the nature of civil partnerships and on the kind of legal rights and responsibilities which will come about with such partnerships. No doubt there is currently a great lack of clarity in relation to property and inheritance.
But surely one thing is crystal clear: if the Bill is passed with the Commons amendment, then any child who is adopted will have a clear legal right to two parents and those two adoptive parents will have a clear legal responsibility to that child. If we believe that the legal bond of marriage strengthens a relationship, as I believe it does, then surely it follows that a legal bond between the adopted child and the adoptive parents will strengthen that relationship. The love that exists will be strengthened by the legal relationship.
The noble Earl suggested that we should go for the very best for this group of particularly vulnerable children. But, as we know, sometimes the good is the enemy of the best. I believe that, for the reasons I have

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suggested, the good of this particular group of very vulnerable children points to accepting the Commons amendment.
5.30 p.m.
Baroness Howarth of Breckland: My Lords, I have been present throughout the passage of the Bill, except during one debate when I attended a board of the National Care Standards Commission. I am a practitioner. I shall not make the speech that I was intending to make because I believe that most of the points have already been raised. I stand here between two colleagues who are also practitioners—my noble friends Lord Laming and Lord Warner. I suppose we could say that, for decades, in many ways we have been responsible for trying to place such children. I am also looking around at other colleagues who have had similar experiences.
We have struggled with old adoption legislation. Improved as this is, our colleagues who have now taken up the cudgels will struggle with this legislation. The reason is that, by the time the children reach us, they are extraordinarily disturbed and difficult. That is not their fault. They have been through extraordinary experiences. I spent 15 years listening to children on the telephone at Childline and I heard about their experiences. Many of the children were in heterosexual family homes. We should not deceive ourselves that marriage and a family make a family a safe place; nor should we deceive ourselves that any relationship makes a safe place.
The noble Baroness, Lady Walmsley, made many of the points that I have chosen not to make about the way that statistics are interpreted and the way that families are characterised. I would not sully your Lordships' ears with the details, but I have heard of the worst forms of abuse taking place in families with a mother and a father where children have been extraordinarily sexually and physically abused. Those children often end up in our children's homes, where our staff make tremendous efforts to put things to rights. But no social worker in the country would say anything but, "Could we place some of these children in a family? That would be our choice". That is not always the choice that is made; sometimes there is a need for residential care.
We have talked about adopters dropping out. I have made this comment on a number of occasions: when one tells would-be adopters about the children that they are likely to adopt, it is not surprising that they drop out. I understand absolutely that many families want to adopt a baby. We know—we have said it several times in this House and throughout the debate—that there are simply not enough babies to go round. I repeat that phrase in order to emphasise how we view the matter. We should not be looking at how many babies there are to go round but at how many families we can find for every child in need. Indeed, the noble Baroness stated that very clearly. A sentiment felt strongly on both sides of the House—a view that I respect—is that we are looking for the best for every child.
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However, it is necessary to look at the behaviour of some of the children to whom I refer. I believe that my noble friend Lord Warner, in his present position, is more aware of this than I am. A 10 year-old who is already sexually active, who has burgled the whole local village and who is not against a street mugging is not an easy placement. By the time that child is 14 years old, the odds of placement will be even lower and the likelihood of it happening even narrower. As someone who has tried and struggled to find homes, I can tell your Lordships that people who long to give homes to such children are simply not out there.
I believe that real issues arise in relation to placing some of those children in family homes where there are other children. In carrying out an assessment, one is careful to ensure that one does not leave other children in the family vulnerable to the sexual advances of a young man who is already abusing in his career. Therefore, many assessment decisions have to be made.
The noble and learned Lord, Lord Lloyd, whose previous speech I admired and whose speech today I admire even more, argued about the homosexual issue, and so I shall not refer to it. I simply want to remind the House that it is not in homosexual, heterosexual or single relationships where boyfriends enter the scene that children are abused; it occurs in the whole range of relationships. The real test is to get right the training and assessment of children.
I am not a lawyer and so I do not know about the human rights or property debates. I only know and understand how I would feel as a child. I heard recently of a child who, on the death of both his parents, desperately wanted to be placed with his uncle and his uncle's friend. He wanted to know what would happen to him if his uncle also died. Would he have property rights? Would he belong in the same way to this new family in which he chose to be placed? Children do not understand such subtleties; they understand only the need for love and care.
Perhaps I may tell your Lordships—I believe it is my responsibility to do so—about the voices of some of the children. I have recently been involved with the Seiff Foundation, which looks at the issue of children in prison. Earlier, a noble Lord referred to the fact that, although a statistical number of children are apparently waiting for adoption, there are many more who could use families if only we could find them. Again, about 3,000 of those young people are in prison-type institutions in this country. As we have heard time and time again, a staggering percentage have experienced the care system or have had multiple placements. Perhaps your Lordships will listen to the voice of a 14 year-old in secure accommodation:
"I'm only in secure because I've been in the care system since I was four. It's only because I'm in the care system that they can do this to me. I'm vulnerable, but I wouldn't be here if I wasn't in care".
Another said:
"Since the age of 11 I've been running off and looking after myself. I'm not like a normal 15 year-old that has a family and has never run off".

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I have said before that anecdote does not make evidence but I could produce hundreds and hundreds of examples of voices of children telling us about their wish to be in a secure family. Their behaviour would deny that but we know that, if we can hold on to them for long enough and give them stability, those children would settle down. These are the children for whom we should lose no opportunity to find the widest pool of alternative caring families. I take the view that finding one family for one of these children is worth while. When I started with Childline I said that if we could help one child it would be worth it, but we have helped a million.
We should not give up on these children, but putting them in ordinary families can cause a difficult situation. Some of the children say that they do not want an ordinary family relationship. There are youngsters who say that they would prefer to stay in a residential home than repeat the kind of family experience that they have had. Sometimes an alternative experience with single people, as mentioned by the noble Baroness, Lady Hayman, or in a different kind of family will give such children another chance, so that they are not put under the kind of relationship strain that they have already experienced.
The situation depends on where children find themselves. This is not a test-tube situation in which a child has a choice. Most of these children find themselves in foster homes where they have a loving relationship and then they are put forward for adoption, often with adoptive parents who are not married or who are in a gay situation, or where one of the people is a parent. The children want to feel stable with both parents. It is not about finding children for families, but about children finding themselves in families.
I am unmarried so I do not want to participate in the debate on the sanctity of marriage. I do not want to talk about the rosy picture that is often painted of family life. Let us remind ourselves that even adoptive families break down and even the best assessment processes occasionally will not make everything perfect. Let us not seek absolute perfection, but look for the best. Family breakdowns are damaging to children. I assume that every noble Lord who has spoken in the debate is not divorced and is providing the best possible context for his or her own children.
In this debate we should be discussing the assessment of applicants, the training of social workers and our ability to listen to children. In an age when we cannot attract social workers to the profession—need we ask why when we consider the type of tasks that we ask them to undertake—why have we spent such a tiny amount of time discussing the issues with half a dozen of us sitting around a table or in this Chamber, yet today. with great interest from many noble Lords, we are spending so much time discussing this matter?
We must do nothing to prevent children, especially children in trouble and those with disabilities, from finding a place that will be their emotional home. That
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may not be conventionally comfortable; it may not fit our beliefs—I say that as a Christian—or our prejudices, but is it really ours to take away?
5.45 p.m.
Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Jenkin of Roding, described the report of the Joint Committee on Human Rights as nonsense. I believe he also found the judgments to which we referred in our report extremely unhelpful; that is the unanimous judgment of the South African constitutional court delivered in September and the minority view in the Fretté v France, where the British judge, Sir Nicolas Bratza, formed part of the minority.
I am sorry that the noble Lord found our report to be nonsense. Without going into the detail of that report, I want to mention a couple of points. At this late hour noble Lords will not want me to say more. First, why did the committee, which is a unanimous, all-party and beyond-party committee, deliver its report? The answer is that one of the matters that the committee tried to deal with in scrutinising legislation is amendments that are tabled in the course of a debate, but which have not received consideration by a Minister's compatibility statement. We believe that it may help both Houses to deal with what the noble Baroness, Lady Hayman, rightly referred to as our responsibilities as legislators. We try to inform both Houses of our opinion—it is no more than an opinion—as to whether we consider an amendment likely to be regarded by the courts as compatible or incompatible with the human rights and duties by which the UK is bound.
That is why we report and we have to do so with great speed. That does not excuse the fact that our report contains one mistake for which I must apologise. It summarises the Fretté v France case incorrectly. It makes it appear to be a case about a lesbian couple, but it was a case about a single homosexual man.
My other point is that when I hear noble Lords say that they do not agree with the report, I wait in vain for them to explain what they disagree with in relation to the reasoning. The constitutional court of South Africa, as one will see if one reads page 8 of the report, was faced with a child care Act with identical provisions to those in the amendment of the noble Lord, Lord Jenkin of Roding, and the amendment of the noble Earl, Lord Howe. The constitutional court of South Africa, a common law jurisdiction of high repute, unanimously decided that it would have to strike down the exclusion of homosexual couples while dealing later with the position of heterosexual couples.
We predict—it is no more than that—that if our courts were faced with a human rights challenge to the amendment of the noble Earl, Lord Howe, or the amendment of the noble Lord, Lord Jenkin of Roding, under the Human Rights Act, they would he likely to declare either or both of those amendments to be incompatible. If they made a declaration of

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incompatibility, the matter would return here. That is only a prediction and I am simply one member of the committee making that prediction.
Lord Elton: My Lords, I am confused. My noble friend on the Front Bench raised this point. The Bill was drafted by the Government, supported by the Government in the other place and certified by the Government to be compatible, as the noble Lord's committee agreed. He is now saying that that is not the case and that it would fall if challenged. What has happened in-between?
Lord Lester of Herne Hill: My Lords, I am anxious not to take time on this matter, but we deal with that point in the report. The noble Lord, Lord Elton, can read it. We explained what has changed at the beginning of the report. He will see that this is not the Bill that was originally introduced and that the amendments tabled by the noble Earl, Lord Howe, changed the original Bill.
I suggest that if this matter had to be argued before the senior courts of this country, they would be likely to follow the constitutional court of South Africa's reasoning, as they have frequently in other human rights cases when considering the decisions of other constitutional courts across the Commonwealth. I hope that it will not be necessary—the House will reject these amendments—to employ lawyers like myself and to take up the time of the courts with the result that the matter is referred back to this place.
Baroness Massey of Darwen: My Lords, I have thrown away my original speech because many powerful points that I wanted to make have already been made. I want to emphasise and support my noble friend Lady Hayman who spoke about widening the pool of adopters. The right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Howarth, also mentioned that. As the noble Baroness, Lady Howarth, said, most people who want to adopt, want to adopt babies, not difficult children. Therefore, the pool needs to be widened. Children who are difficult to adopt are often left in care.
I want to quote from yesterday's Daily Mail—a journal that I do not often read—and from a spread about a lesbian couple, the headline of which reads,
"Liz and Josette have been together for 17 years and have adopted three emotionally disturbed girls".
I shall read out the letter from one of those girls which pulls together some of the points that have been made by many noble Lords about the problems of children who are not adopted. The girl said:
"Dear Lords and MPs, I am adopted and I would like to have both of my mums' names on my adoption certificate.
"I want two legal parents and I don't care if they are married. I did not want a dad because of some private things I cannot say.
"I already had a mum and dad and I have a birth certificate to prove it. They were very bad and I never ever want to see them again.
"I am a good girl at school and I work very hard and I feel like you make us feel punished and wrong again. I feel you telling me my family is wrong. I think you are being horrible to us".
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The question is whether this girl is better off in a children's home than with these two parents and her siblings, who clearly love her.
I implore your Lordships to think again about the flexibility which is essential to allow such children to be adopted.
Lord Williams of Mostyn: My Lords, perhaps we could draw a few threads together and consider a possible time limit. We started at 3.15. Are your Lordships agreeable to contributions being concluded, other than those of Members winding up, by about 6.30? There would then be an opportunity for the noble Lord, Lord Jenkin, the noble Earl, Lord Howe, and others to speak. Would that be too early for your Lordships?
Noble Lords: Yes!
Lord Williams of Mostyn: My Lords, the noble Baroness, Lady O'Cathain, is glaring at me and saying, "6.15". I therefore capitulate.
Baroness O'Cathain: My Lords, I thank the noble and learned Lord. I too have a speech—not very long—prepared. Most of what I was going to say has been said already.
It is disappointing that the other place rejected the amendment which was passed so conclusively in this House on 16th October. I know that there are those—and this point was mentioned again today by the noble Baroness, Lady Hayman—who feel that this House is undemocratic because noble Lords are not elected. A great number of people outside this House have followed this issue extremely carefully. The mailbags have shown where the preponderance of preference lies. I think that this House has actually done a great service to this issue and has listened, whereas the other House has not necessarily listened. I do think that that is democratic.
Let us remember that the vote on this issue was won here only because of support from all sides of the House—either actively voting for the amendment or abstaining for their own special reasons. It is not a Conservative issue only; it is an issue for us all. It is an issue only about children. It is that we should get more damaged children "rescued" from the instability of changing foster placements or from institutional care, offered a permanent, stable home and given a fresh, new start by loving people who put the welfare and the care of those children above other considerations. That, in essence, is what we all wish for each of these children.
The point was made that we are using statistics to our own advantage. In fact yesterday the Minister of State for Community, Department of Health in the other place, Jacqui Smith, used the phrase,
"dogma backed up by dodgy statistics".—[Official Report, Commons, 4/11/02; col 96.]

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Statistics have been misquoted in this House today which imply that we said that couples who marry have the same kind of stability as couples who cohabit. The Office for National Statistics' figures, which were quoted before, state that, for couples who are married and have a child, within five years of the birth of that child 8 per cent split up; and for couples who cohabit and have a child, within five years 52 per cent of them split up. That is the salient difference when we talk about the stability of married couples and of cohabiting couples.
People talk about cohabiting couples in loving relationships. They will have to commit to this child—a very difficult child as has been pointed out. We all know these children are not babies. They have been fostered. They are children who have been in and out of institutional care. If heterosexual couples are prepared to commit to this child in a legal way, why can they not commit to each other? No one—the right reverend Prelate the Bishop of Oxford in particular has certainly not convinced me about that—
Lord Haskel: My Lords, I thank the noble Baroness for giving way. Does she not know of some couples who cannot get married because one of them is married already and for various reasons cannot get divorced?
Baroness O'Cathain: My Lords, yes, I think I do. They probably do not want to adopt, do they?
Because of the proposals in the Bill, we are all talking about widening the pool of adopters. Absolutely, that is what we want to do. But let us not forget that the pool has been widened significantly since 1997 when the Prime Minister took a personal interest in the issue. At that stage 1,900 children—out of a potential 5,000 offered for care—were adopted. This year the figure is 3,800, which has hit the Government's target for the year 2004. The momentum started with the Prime Minister. The pool will he widened further once the Bill becomes an Act. I am absolutely convinced of that. Again those 3,800 children are not babies but damaged children.
The amendment to the Bill in its passage through the other place aims to widen the pool. I think that is not necessary. I do not want to get involved in the legal minefield. I shall not. But in the interests of brevity I should just like to say that these are not dogma and dodgy statistics but statistics supplied by the Office for National Statistics.
Looking at the matter from another angle—and this is my last point—is there a large demand by non-married couples to adopt? I think not. The British Association for Adoption and Fostering's study of 1,932 adoptions reported not one case involving a person adopting a child while living with a partner. That is the agency which sent us all this information, including Be My Parent. The same study found three reported cases of a homosexual being approved as an adopter. Homosexual adoptions comprised 0.2 per cent of all those approved.
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What we really want to ensure is preference for adoption by married couples in the interests of damaged children. This was supported by the Government's statement in the Green Paper on the family that,
"marriage is the surest foundation for raising children".
Unless this House insists on the amendment we are debating, not only will we be flying in the face of the Government's commitment to the married family but we shall also take a huge risk with the long-term prospects of the damaged children we so much wish to protect.
Lord Laming: My Lords, unlike the noble Baroness, Lady Howarth, I have not been able to be here throughout every stage of the Bill. I am grateful for the opportunity to say something today, albeit briefly.
A great deal has already been said in the debate today. I shall not try to rehearse it. Indeed, I could not say it as well. The Minister set out very clearly the rigorous process that adoptive parents have to go through. That is only part of the process. They then have to go to court. The noble and learned Lord, Lord Lloyd, set out at Report and again today the kind of thinking that courts adopt when they consider matters of this kind.
In 1961, I first started to work in courts which dealt with, in those days, family matters. I was struck by the great care and concern of the courts which dealt with these matters. I was aware of the anxious thought that was devoted to trying to ensure that all parties were treated fairly, but in particular that the interest of the child was always kept at the centre of the court's attention.
Of course we should all like to see children placed in what might be described as ideal situations, whatever that may be. The reality is that courts rarely deal with ideal situations; they deal with quite difficult situations where a great deal of sensitivity has to be displayed and a great deal of careful judgment has to be exercised.
I mean this as a compliment when I say that in the years of my involvement in the courts I never thought that they were remotely interested in or influenced by what might be called social engineering or political correctness. They have always devoted their time and energy to carrying out their main function, which is applying the law to the best needs of the individual child.
Some children come forward for adoption having had bad experiences. But it is not possible to legislate for every possibility. Perhaps I may suggest one possibility to illustrate the point that I want to make. Let us imagine a family with two young children and the parents are killed in a car accident. Fortunately, there is a loving maiden aunt, who willingly offers the children a home and her care. In due time, the maiden aunt decides that, for the long-term security of the children, she will seek to adopt them. During the adoption process it emerges, first, that she is engaged in a long-term lesbian relationship and, secondly, that her health has some questionable aspects to it. In the long-term interests of the children and their security, it

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may well be thought sensible for both women to adopt the children. The reality at present is that are they unable to do so.
Parliament cannot anticipate every possible human situation where adoption may be necessary and where it may be right for a child or children. What Parliament can do is to create a framework of legislation allowing judges and those in the courts who deal with these difficult matters to exercise careful judgment about the best interests of the child, given the reality of the situation in which he or she finds herself. That reality cannot always be anticipated by Parliament. Parliament has to create a situation where it is possible for the courts to exercise such judgment. I suggest that that is best achieved by allowing the amendments from the other place to go through.
6 p.m.
Lord Phillips of Sudbury: My Lords, I came to this House today with an open mind—having "sat on the fence" at Third Reading—determined to reach a conclusion. This has been a fascinating and brilliant debate. It has certainly helped me to reach—albeit agonisingly—a decision. I shall vote with the Government.
I should be grateful if the Minister would respond to the following point. Ironically, it touches directly on a point made by the previous speaker. It concerns the efficacy of the assessment process. Everyone in this House has been caught up with the effectiveness, the wisdom, of the means of arriving at an adoption decision. I was struck by what the noble Lord, Lord Alli, generously said at Third Reading:
"I happily agree with many noble Lords that married couples should have priority over unmarried couples. I also agree that unmarried couples should have priority over gay couples".— [Official Report, 16/10/02; col. 874.]
He was indicating that in the assessment process one can expect the adoption panel, social workers and the court to take account of all the considerations of which those comments are a part.
However, thinking back to the early days of my own career when I acted in adoption cases, I have to say that the second part of the two-part process—namely, where the judge reaches a decision in court—was cursory at best. During the past two days, I have checked on this with current practitioners of adoption law. Both confirmed that, in the phrase used by one, it is a "victory parade". He said that by the time the case comes to court, it is over and done with. These days, there are photographers, flowers, even drink, and everyone is dressed in their best bib and tucker. It is not, so I am informed by current practitioners, a very effective second part of the process, and that is the norm in most courts—it may vary from court to court.
Since everyone rightly places such importance on this two-part process, the Government may be well advised to inquire as to the extent to which the second part of the process is a real one. If it is an unreal one—
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and I suspect that it is—the House, and indeed the country, would be greatly reassured if it were given the efficacy that many assume it to have.
Lord Campbell-Savours: My Lords, on the previous occasion I voted in favour of the amendment tabled by the noble Earl, Lord Howe. I am afraid that this time I cannot do so. Perhaps I may explain why.
I voted as I did, along with a sizeable number of Members of this House—which may well be reflected in the Lobbies this evening—to make a point on the question of same-sex adoption, aspects of which concern me. I have never been opposed to adoption by heterosexual unmarried couples.
The debate has indicated that we should be very careful about voting down the proposition that has come to us from the Commons in that area. Society has changed; and we have a duty to reflect those changes. My position was half set out, both on the previous occasion and on this one, by the noble Lord, Lord Jenkin of Roding. It is not that I am altogether concerned about certain types of same-sex adoption—in particular, lesbian adoption. There is adequate evidence of many successful placements of children in lesbian circumstances. My main concern relates to the placing of boy children in a household where two men are the official adoptive parents.
It is not the question of abuse that concerns me. That question will be adequately dealt with during the assessment process. It is likely that there will be less abuse given that an assessment process has taken place than in heterosexual conditions—that is to say, under normal parenting arrangements. I am worried about what will happen in the mind of a boy child in those conditions. I have seen no evidence, work or description of conditions relating to such cases.
As I understand it, technically, boys can currently be adopted by individual homosexual men—who on occasions, I presume, live with their partners. There must be work available in this area, but I cannot locate it. Have Members of this House seen any of this material? It is simply not available. All I ask is this. Before we take a decision of this magnitude, let us see some evidence of what happens in such circumstances.
I am worried about the position of boys in the local community. The noble Baroness, Lady Walmsley, referred to bullying. In some communities bullying is extremely difficult to handle. When I ask how children will manage, I am told that they will be helped—but by whom? It is often difficult for a child who is bullied to find the necessary help to stop the bullying. I am worried that boys in those conditions may well be targeted.
Baroness Howarth of Breckland: My Lords, I do not think that I have ever interrupted a noble Lord's speech before, but does the noble Lord think that we should allow bullying on the basis of colour or disability to continue? If not, why should we allow it to continue on this issue?
Lord Campbell-Savours: The answer to the noble Baroness is no.

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Boys may well reject their family environment. In certain conditions, they may turn against society. I do not know, because there is no evidence and no one has provided any information about what happens in such conditions. They may become anti-social. I do not know. But people are asking such questions. Concern is naturally expressed by those who take an interest in the matter. Could boys in such conditions become sexually confused? I understand that that has not been a difficulty in the case of lesbian adoption, so perhaps that anxiety should not trouble me.
Last week, I consulted widely for a day and a half, not with the national professional bodies but with individual social workers in various parts of the country. I offered them anonymity during my conversations. I told them that I would not repeat what they had said in terms of identifying them under any conditions, and I asked them for an honest view on the implications of the provision.
What surprised me is that there was division among social service workers on the ground that is not reflected in the case made by the national bodies to this institution of Parliament. There are mixed views within teams dealing with such matters. But I had not heard the other view, which is expressed by social workers and people in family placement teams. I had heard only one view: that being expressed in the main by their national representative bodies.
There is clearly satisfaction within social service departments and family placement units over the apparently widespread success of lesbian adoption, but repeated reference was made to the fact that no research had been carried out in the area. I found that most worrying. Most of those to whom I talked will no doubt read the report of what I have to say tonight. I must also report that during most of my conversations, underlying anxiety was expressed about some of the Bill's consequences. Indeed, I am told that some people in the field—in the front line—will simply not refer children into same-sex adoptions where a couple have joint adoption responsibility.
I conclude that we need more information before we go down that route. Curiously, my position tonight will not necessarily obtain in the long term. In a future society, when people are even more readily able to understand same-sex relationships, this debate may well appear irrelevant. We may entirely adopt the Government's position on the matter. I simply believe that we do not yet have sufficient information.
I shall vote with the Government tonight, and shall vote for the amendment tabled by the noble Lord, Lord Jenkin of Roding.
The Earl of Erroll: My Lords—
Noble Lords: Order.
Lord Williams of Mostyn: My Lords, perhaps we can just hear from the noble Earl, Lord Erroll. He has been waiting a long time and always speaks briefly.
6.15 p.m.
The Earl of Erroll: My Lords, I shall speak for only one minute. First, I want to make clear that I am neither homophobic nor homosexual. I feel that the speech of the noble and learned Lord, Lord Lloyd of Berwick, was addressed to the amendment tabled by the noble Lord, Lord Jenkin of Roding, which I shall therefore not be supporting. However, the amendment tabled by the noble Earl, Lord Howe, carries much merit because it would not stop any of the cases of homosexual adoption of which we have heard. It would allow only one partner's name to go onto the bit of paper. That will be of benefit, because problems arise if there is a break-up. It will avoid the tug of love that currently arises in a divorce.
There is no legal framework to deal with a tug of love in the case of an unmarried couple who are separating. Until that is set up, we should not provide a framework in which that tug of love can happen. Some such relationships will break down. I cannot see why a couple who are happy living together will have a problem with putting only one name on the adoption paper. I cannot see why that will be a bar. If they are unmarried and heterosexual, they have only to visit a registrar, which is simple. I see no possible argument against the amendment tabled by the noble Earl, Lord Howe.
Baroness Thomas of Walliswood: My Lords, after a long, passionate, thoughtful and compelling debate, the issue remains clear. Our decision concerns the definition of who shall be qualified to apply to become an adoptive parent and, in particular, whether to extend that qualification to gay and straight unmarried couples—always remembering that today, as for many years, gay and straight individuals living in couples can adopt children. That is what this debate is about.
A great deal of statistical argument has been advanced, into which I shall not enter. Instead, I remind your Lordships of my noble friend Lady Walmsley's extremely cogent speech about the statistical issues. I also remind your Lordships of the argument advanced so forcefully by the noble and learned Lord, Lord Lloyd of Berwick, in our debate on 16th October. He said that in a case in which adoption of a child is in question, the judge and everyone else are concerned not with an average couple but with whether the couple concerned can provide a home for that child. We should remember that at the end of the debate.
At present, a single person, whether gay or straight and whether living in a couple or not, can adopt a child. It is illogical to allow that to continue but to prevent a couple from adopting a child together. The noble Baroness, Lady Hayman, told us that that argument was unworthy of a legislative assembly. After all, two parents are better than one and joint parenting is more effective than parenting by one person with the other person not sharing responsibility. A child adopted by a couple has a far

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greater hope of continuity of parenting in the case of the death of one parent, because that child will have another parent whose responsibility will continue.
Where couples separate—married as well as unmarried couples separate—if both are loving parents, they may both remain as loving parents to that child, even if they are no longer living together. A child would, arguably, have greater financial security with a couple if both members of that couple were its parents.
The main objective of the Bill is to reform the system of adoption so as to reduce the length of time taken to arrange a suitable adoption and to enable more children to find adoptive parents. The principal consideration for everybody involved is the welfare of the child throughout its life. A relevant fact is that the greatest predictor of offending behaviour is upbringing in a children's home. The second is the total breakdown of the family life of a child in its birth family, which amounts to the same thing. Children, especially if they have been traumatised by their early life or have had to be removed from their birth home, need adoptive parents with the stamina, commitment and mutual solidarity to provide a secure, lifelong, loving home.
If the Government's amendments can widen the circle from which parents can come, who are we to stand in the way? When the time comes, I will support the Government, and I hope that the majority of your Lordships will do likewise.
Lord Hunt of Kings Heath: My Lords, it has, once again, been an intense and passionate debate. I am heartened by the consensus in all parts of the House on our shared determination to improve adoption. Like the noble Baroness, Lady O'Cathain, I rejoice that there are encouraging signs that the drive to increase adoptions is working.
I listened carefully to those who argued that, if we continued to make that progress, we could rely solely on married couples. However, that simply is not the view of those who know best, those who deal with adoption day in and day out. We should listen to the noble Baroness, Lady Howarth of Breckland, to the many adoption agencies and to the British Association for Adoption and Fostering. They say that the evidence proves categorically that it is not easy to find families for children waiting to be adopted and that we must widen the eligibility criteria to encourage more adopters to come forward. They say that an increasing number of single people, some of whom live with a partner, is interested in adoption. They say that we simply cannot afford to exclude such people on arbitrary grounds related to their marital status. If we are serious about finding families for children, we must welcome applications from all families who believe that they have something to offer and judge each application on its merits.
Some ask, "Why, if unmarried couples are so committed, don't they get married?". The debate is not about the reasons why unmarried couples are unable
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to or choose not to marry. It is about increasing the number of vulnerable children who have the opportunity to grow up as part of a stable, loving and permanent family. That must be the test. Any couple wishing to become adoptive parents must prove not only that they can provide a loving and stable environment for a child but that their relationship is sound and likely to last.
There are many reasons why people who live together may not marry. It may have nothing to do with their commitment; it may, as the right reverend Prelate the Bishop of Oxford suggested, be because of the trauma of an earlier failed marriage. Gay couples, of course, cannot marry. Society is as it is, not as we would wish it to be. It is as it is. In 2000, more than 40 per cent of births were outside marriage. More than 40 per cent of marriages end in divorce. No doubt, noble Lords wish that that were not so, but it is.
The noble Earl, Lord Howe, asked about the civil registration of partnerships. He asked why we were not waiting for that. We are looking at that matter across government, but children do not have time to wait. The opportunity to legislate on adoption comes very infrequently. Now is the time to settle the matter once and for all. The noble Earl spoke about the breakdown of unmarried relationships and about how a co-habitee could be left with nothing and the child left in the middle. The Children Act 1989 places all children on an equal footing, whatever the marital status of their parents. All couples with children have remedies, on the breakdown of marriage and co-habitation, in respect of children. The Children Act enables orders for maintenance or for adjustments of property to be made, as well as lump sums, in favour of the children of those parents. As the right reverend Prelate the Bishop of Oxford said, a legal relationship to two adoptive parents is surely a source of strength and security to the adoptive child.
I say to the noble Baroness. Lady O'Cathain, that I cannot accept the concept of a hierarchy of relationships. In the end, it undermines the paramountcy of the child. It says that a married couple should always be considered in a higher category than an unmarried couple, whether of the same or opposite sex. If the child is central to our concerns, we cannot close the door to whole groups of potential adoptive families. Our approach must recognise that the child's interests are paramount. Each applicant must be judged on his or her merits, as the noble Lord, Lord Laming, suggested.
The noble Lord, Lord Phillips of Sudbury, always makes relevant contributions to our debates. He asked how good the courts were as a check. Under Clause 1, the courts will always be obliged to consider the child's welfare as the paramount consideration. The court can make the adoption order only if it is satisfied that that is better for the child than not doing so. The court must consider full reports on cases from the adoption agencies. Often, it is their reading of those reports that exercises and informs the judges. That will all be set out in court rules.

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The Bill also allows the courts to commission independent reports on the case from a CAFCASS officer, if they think it necessary. Family Division judges are trained in children's issues. I pay tribute to the noble and learned Lord, Lord Mackay of Clashfern, for his extraordinary initiative in the area. Specialist adoption centres have been introduced, so that expert judges can deal with adoptions. I assure the noble Lord, Lord Phillips of Sudbury, that there will be thorough training for the judiciary in implementing the Bill. The transient relationships so feared by the noble Earl, Lord Howe, when speaking about co-habitees, simply would not get past the starting post of the tough adopter assessment process that I set out today—let alone getting anywhere near a child.
There is the question of the European Convention on Human Rights and the interesting report of the Joint Committee. When the Bill was introduced into the Commons, the Government took legal advice. That advice was that the position in the Adoption Act 1976 and the Bill, as it stood, was, on balance, defensible on ECHR grounds. The committee has now given its view that the Bill, as amended by the Lords, is incompatible with convention rights. The Government do not necessarily accept the committee's reasoning, but we recognise—as we always have—that, in the light of developing case law, there is always a risk that current law and the Bill, as it stands, could be found to be incompatible. Much will depend on the circumstances of the case.
We have always recognised that, in this area, compatibility was an "on balance" judgment. We have always realised that current law and the Bill, as introduced in October in another place, could be open to challenge. The JCHR report draws attention to that.
6.30 p.m.
Baroness Blatch: My Lords, I thank the Minister for giving way. Does he not agree that in the words which appeared on the face of the Bill when it came before the House, no suggestion of balance was made by any Minister of this place or another place? The word on the face of the Bill was "compatible".
Lord Hunt of Kings Heath: My Lords, the noble Baroness is a highly experienced Member of this House and a highly experienced Minister. She will know that many judgments have to be made on balance. On the advice my right honourable friend was given, on the balance of argument, he felt able to sign that certificate. I believe that I have given as full—
Lord Jenkin of Roding: My Lords, I am grateful to the Minister for giving way. Is he aware that the report of the Joint Committee relied for its decision on the fact that there had been a case which has already been referred to—the Fretté case—between when the Bill was first introduced and when the amendments were passed a fortnight ago? Is the Minister also aware that the decision in that case went the other way? The only way that the Joint Committee could justify its view was
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to say that the case was wrong and would have to be reviewed. That cannot be regarded as a serious contribution to the human rights debate.
Lord Hunt of Kings Heath: My Lords, I am aware of the cases to which the noble Lord refers. That is why I said carefully that the Government do not necessarily accept the reasoning of the committee.
Lord Lester of Herne Hill: My Lords, does the Minister agree that the Human Rights Act expressly frees our judges not to be bound by a majority decision of a chamber of the court, but to be able to be persuaded by other cases such as that in the South African constitutional court? Does he also agree that that is why it is a difficult judgment as to where our courts would finally strike the balance in the way that the Minister had himself to do?
Lord Hunt of Kings Heath: My Lords, I agree with that.
Lord Elton: My Lords—
Noble Lords: No!
Lord Elton: My Lords, I speak as a non-lawyer and a layman and I want to get this clear. Is the Minister saying that when it says on a Bill that the Minister signs it off as compatible, it means that it is probably compatible?
Lord Hunt of Kings Heath: My Lords, that is a ridiculous point to make. Ministers make decisions and judgments on the basis of evidence and argument and they have to make them often on the balance of argument. That is all I have said. My right honourable friend the Secretary of State for Health was confident when he signed that certificate that he was right to do so. It was based on the balance of argument.
I turn briefly to the noble Lord, Lord Jenkin. He agrees with me up to a point. Particularly, he accepts the thoroughness of the adoption assessment process. However, I have a problem with his amendment because I believe that what he proposes is surely discrimination. Both the noble Lord and my noble friend Lord Campbell-Savours raised the issue of research. I have looked at varying degrees of research. More is needed—I have no doubt about that. However, there is no evidence to suggest that children of gay men and lesbians are significantly more likely than children of heterosexual people to become homosexual. Indeed, most lesbian and gay people grow up in heterosexual families.
There is growing evidence based on outcomes for children living in same-sex households. No reliable research to date has identified significant differences between lesbian and gay parents and their heterosexual counterparts. When I look at the challenging childcare taken on by some gay adopters I do not excoriate them, I salute them for their courage and determination at what they are giving to young people. Rather than just worry about children's

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security in that area, let us do what we can to increase it. Children being looked after by a couple, only one of whom at the moment is able legally to adopt them, have made it clear time and again that they want a legal relationship with two parents and not just one.
The noble Baroness, Lady O'Cathain, referred to the question of whether the reason for bringing back this amendment is one not of concern for the child, but of concern for political correctness or social engineering. Perhaps I may say—
Baroness O'Cathain: My Lords, I did not say that at all. I never mentioned social engineering or political correctness.
Lord Hunt of Kings Heath: My Lords, I apologise. It is something the noble Baroness said on Report and was referred to by a number of other noble Lords. I want to say clearly that there is no question here of social engineering. It is simply a question of seeking to provide the best basis possible for ensuring that vulnerable people are given all the support they can get within loving families. As my noble friend Lady Hayman said, there is not a division between those who argue for the rights of children against the rights of adults. This is about children.
It is why we made so many improvements to the Bill, such as advocacy, financial support, ensuring rights of access to information about adoption, and improved placement provision. Those amendments were supported and inspired by adoption and children's organisations. Noble Lords have listened to them and attached their names to so many of the key amendments which we have accepted in a spirit of consensus.
On the question of unmarried couples, why would noble Lords, who have faithfully replayed the views of those organisations on so many occasions, reject the wisdom and experience of those organisations such as BAAF and Barnado's? Listen to Barnado's. It says that the issue has been portrayed as an attack on marriage and a dilution of the importance of the family. In fact, says Barnado's, it is the opposite in that those amendments seek to strengthen the security of couples who wish to provide a secure home base for an adopted child, but who do not choose to, or cannot, marry. Barnado's recognises that the Bill's construction is such as to ensure that the child's interests are paramount.
It was the right reverend Prelate the Bishop of Chelmsford who mentioned the question of social engineering. I can reassure him that it is not. It is about children—vulnerable children, often lonely children, children with multiple deprivation, or children who have been grossly neglected. Of all the Bills that I have taken through your Lordships' House—and that is quite a few—this is by far the most important. My noble friend Lady Billingham summed it up so well. The Bill will give hope to thousands and thousands of
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young people. It would be so much better if unmarried couples can be permitted to adopt jointly. I urge the House to reject the noble Earl's amendment.
Earl Howe: My Lords, this has been a good debate and it is time to vote. I shall make one or two points. Many noble Lords will have made up their minds on the issue long before we started debating today. The best I can hope to do is influence those who have not done so. To those noble Lords I say that I have not heard anything today which has tempted me to change my mind. I believe that the Commons amendments are misconceived.
I say to the noble and learned Lord, Lord Lloyd, that I do not believe he did anything to counter the point that I was trying to make—and made very well by the noble Earl, Lord Erroll—that to grant rights to unmarried partnerships without defining the nature and status of those partnerships in law is premature and exceedingly ill-advised, not least in the area of property rights when the relationship breaks down.
Baroness Hayman: My Lords, I thank the noble Earl for giving way. It is a fallacy to talk about giving rights to unmarried partners. What we are talking about is giving rights to the adopted children of single people who live with partners who would have no legal responsibilities towards them otherwise.
Earl Howe: My Lords, I agree that this is not a debate about the rights of adults and there is no difference between us there. But like it or not, the effect of the Commons amendments would be to grant rights to individuals who do not have those rights at the moment. That was all that I was seeking to say.
The Minister knows perfectly well that the Children Act provisions are much weaker than those available to the matrimonial court. The Minister in another place, Jacqui Smith, had it right last November when she argued cogently and at length for the law to remain as it is for that reason and for others. Above all, a change in the law would do the one thing which none of us wants; that is, to take a gamble and thereby create an added risk for very vulnerable children. Is it right that we should place a child into a legal relationship with two adults who have no legal relationship with each other? I do not think so.
Those who say that there is nothing worse than being in the care system need to reflect on whether there is in fact something potentially worse; that is, to be an adopted child and then suffer the trauma of an adoption that breaks down when the adopters split up. That is the risk that my amendments are trying to minimise.
I am dismayed by the raft of new amendments from another place not only because they have not been properly debated, or debated at all, but because of what they do. It is perhaps enough to say that they have the effect of undermining marriage in what I see as a deeply regrettable way.
One thing I do feel is that this should not be a debate about discriminating between one group of cohabitees and another. There may be some of your Lordships

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who feel inclined to vote for the amendment in the name of my noble friend Lord Jenkin. I hope that anyone in that position will think again. But if they cannot, I hope that at the very least they will vote for my amendment in the first instance. I say that for two reasons. The first is that to vote against me or to abstain would split the vote. The second is that my noble friend's amendment, which he has presented as a compromise, is in fact no such thing. It stands not a ghost of a chance of being accepted by the Government. If the Bill runs the risk of running out of time, my amendment is more likely to be accepted for the very good reason that it represents the Government's own policy. If there is any concern about ECHR compatibility, it surely centres on my noble friend's amendment. For that reason, I do not believe that the Government, or for that matter another place, would wish to entertain it.
It is a very important matter. The House is entitled to reject the Commons amendments for a second time. It is entitled at least to urge the Government to implement their own policy. I believe that it should now do so and I therefore commend the amendment to the House.
6.43 p.m.
On Question, Whether the said amendment (No. 26A13) shall be agreed to?
Their Lordships divided: Contents, 184; Not-Contents, 215.

Division No. 1

CONTENTS

Aberdare, L.

Clarke of Hampstead, L.

Ackner, L.

Cockfield, L.

Allenby of Megiddo, V.

Cooke of Islandreagh, L.

Alton of Liverpool, L.

Cope of Berkeley, L.

Ampthill, L.

Courtown, E.

Anelay of St Johns, B.

Craig of Radley, L.

Arran, E.

Crathome, L.

Ashcroft, L.

Cumberlege, B.

Astor of Hever, L.

Davies of Coity, L.

Attlee, E.

Deedes, L.

Barber of Tewkesbury, L.

Denham, L.

Bell, L.

Dixon, L.

Black of Crossharbour, L.

Dixon-Smith, L.

Blackwell, L.

Dundee, E.

Blatch, B.

Elles, B.

Boardman, L.

Elliott of Morpeth, L.

Boothroyd, B.

Elton, L.

Boston of Faversham, L.

Emerton, B.

Brennan, L.

Erroll, E.

Bridgeman, V.

Evans of Parkside, L.

Bridges, L.

Feldman, L.

Broolunan, L.

Ferrers, E.

Brooks of Tremorfa, L.

Fitt, L.

Brougham and Vaux, L.

Fookes, B.

Bruce of Donington, L.

Forsyth of Drumlean, L.

Burnham, L.

Fraser of Carmyllie, L.

Butler of Brockwell, L.

Freeman, L.

Carlisle of Bucklow, L.

Gardner of Parkes, B.

Camegy of Lour, B.

Geddes, L.

Chalfont, L.

Glentoran, L.

Chan, L.

Gray of Contin, L.

Chelmsford, Bp.

Greenway, L.

Chester. Bp.

Griffiths of Fforestfach, L.

622

Guthrie of Craigiebank, L.

Owen, L.

Hanham, B.

Oxfuird, V.

Hannay of Chiswick, L.

Palmer, L.

Hanson, L.

Park of Monmouth, B

Hayhoe, L.

Pearson of Rannoch, L.

Home, E.

Peel, E.

Hooper, B.

Peyton of Yeovil, L.

Howe, E.

Pilkington of Oxenford, L.

Howell of Guildford, L.

Platt of Writtle, B.

Hunt of Wirral, L.

Plumb, L.

Hussey of North Bradley, L.

Plummer of St. Marylebone, L.

Hylton, L.

Powell of Bayswater, L.

Islwyn, L.

Prior, L.

James of Holland Park, B.

Quinton, L.

Jauncey of Tullichettle, L.

Quirk, L.

Jellicoe, E.

Randall of St. Budeaux, L.

Jopling, L.

Rawlinson of Ewell, L.

Kilclooney, L.

Reay, L.

Kimball, L.

Rees, L.

Kingsland, L.

Rees-Mogg, L.

Kirkham, L.

Renton, L.

Kirkhill, L.

Roberts of Conwy, L.

Knight of Collingtree, B.

Rotherwick, L.

Laing of Dunphail, L.

Saatchi, L.

Laird, L.

Sanderson of Bowden, L.

Lane, L.

Seccombe, B. [Teller]

Lane of Horsell, L.

Selsdon, L.

Lang of Monkton, L.

Shaw of Northstead, L.

Lindsay, E.

Sheppard of Didgemere, L.

Liverpool, E.

Shrewsbury, E.

Lofthouse of Pontefract, L.

Slim, V.

Luke, L.

Soulsby of Swallham Prior, L.

Lyell, L.

Sterling of Plaistow, L.

McColl of Dulwicho, L.

Stevens of Ludgate, L.

McFarlane of Llandaff, B.

Stewartby, L.

MacGregor of Pulham Market, L.

Stodart of Leaston, L.

Stoddart of Swindon, L

Stokes, L.

Mackay of Clashfern, L.

Strabolgi, L.

Maginnis of Drumglass, L.

Strange, B.

Marlesford, L.

Strathclyde, L.

Masham of Ilton, B.

Swinfen, L.

Mason of Barnsley, L.

Taylor of Warwick, L.

Mayhew of Twysden, L.

Tebbit, L.

Miller of Hendon, B.

Tenby, V.

Mishcon, L.

Thomas of Gwydir, L.

Molyneatix of Killead, L.

Thomas of Swynnerton, L.

Monro of Langholm, L.

Tombs, L.

Monson, L.

Trumpington, B.

Moran, L.

Vinson, L.

Mowbray and Stourton, L.

Waddington, L.

Murton of Lindisfame, L.

Wade of Chorlton, L.

Neill of Bladen, L.

Wakefield, Bp.

Noakes, B.

Wakeham, L.

Northboume,L.

Walker of Doncaster, L.

Northbrook, L.

Walker of Worcester, L.

O'Cathain, B. [Teller]

Wilberforce, L.

Onslow, E.

Wilcox, B.

Oppenheim-Barnes, B.

Williamson of Horton, L.

Orme, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Beaumont of Whitley, L.

Addington, L.

Bernstein of Craigweil, L.

Adebowale, L.

Best, L.

Alexander of Weedon, L.

Biffen, L.

Alli, L.

Billingham, B.

Andrews, B.

Birt, L.

Ashley of Stoke, L.

Blackstone, B.

Ashton of Upholland, B.

Bledisloe, V.

Avebury, L.

Borne, L.

Bach, L.

Bowness, L.

Barker, B. [Teller]

Bragg, L.

Barnett, L.

Brett, L.

Bassam of Brighton, L.

Brightman, L.

623

Brooke of Alverthorpe, L.

Hunt of Kings Heath, L.

Brooke of Sutton Mandeville, L.

Irvine of Lairg, L. (Lord Chancellor)

Burlison, L.

Burns, L.

Jacobs, L.

Campbell of Alloway, L.

Janner of Braunstone, L.

Campbell-Savours, L.

Jay of Paddington, B.

Carlile of Berriew, L.

Jeger, B.

Carter, L.

Jenkin of Roding, L.

Chalker of Wallasey, B.

Jenkins of Hillhead, L.

Chandos, V.

Judd, L.

Christopher, L.

Kennedy of The Shaws, B.

Clinton-Davis, L.

King of Bridgwater, L.

Cohen of Pimlico, B.

King of West Bromwich, L.

Condon, L.

Laming, L.

Cooke of Thorndon, L.

Layard, L.

Corbett of Castle Vale, L.

Lea of Crondall, L.

Craigavon, V.

Lester of Herne Hill, L.

Crawley, B.

Lipsey, L.

Crickhowell, L.

Listowel, E.

Dahrendorf, L.

Lloyd of Berwick, L.

Darcy de Knayth, B.

Lockwood, B.

David, B.

Lucas, L.

Davies of Oldham, L.

McCarthy, L.

Desai, L.

Macdonald of Tradeston, L.

Dholakia, L.

McIntosh of Haringey, L.

Dormand of Easington, L.

McIntosh of Hudnall, B.

Dubs, L.

MacKenzie of Culkein, L.

Eatwell, L.

Mackie of Benshie, L.

Elder. L.

Maclennan of Rogart, L.

Evans of Temple Guiting, L.

McNally, L.

Falconer of Thoroton, L.

Maddock, B.

Farrington of Ribbleton, B.

Mafia lieu, B.

Faulkner of Worcester, L.

Marsh, L.

Feam, L.

Massey of Darwen, B.

Filkin, L.

Merlyn-Rees, L.

Finlay of Llandaff, B.

Methuen, L.

Flather, B.

Mitchell, L.

Freyberg, L.

Montagu of Beaulieu, L.

Fyfe of Fairfield, L.

Morgan, L.

Gale, B.

Morgan of Huyton, B.

Garel-Jones, L.

Morris of Manchester, L.

Gavron, L.

Newby, L.

Gibson of Market Rasen, B.

Newcastle, Bp.

Gilbert, L.

Nicol, B.

Gilmour of Craigmillar, L.

Northover, B.

Gladwin of Clee, L.

Norton of Louth, L.

Glenarthur, L.

Oakeshott of Seagrove Bay, L.

Goldsmith, L.

Ouseley, L.

Goodhart, L.

Oxford, Bp.

Gordon of Strathblane, L.

Pendry, L.

Goudie, B.

Peston, L.

Gould of Pottemewton, B.

Phillips of Sudbury, L.

[Teller]

Pitkeathley, B.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Greaves, L.

Prashar, B.

Greengross, B.

Prys-Davies, L.

Grenfell, L.

Radice, L.

Grocott, L.

Ramsay of Cartvale, B.

Hamwee, B.

Razzall, L.

Hardy of Wath, L.

Redesdale, L.

Harris of Haringey, L.

Rendell of Babergh, B.

Harris of Richmond, B.

Renard, L.

Harrison, L.

Richard, L.

Haskel, L.

Rix, L.

Hattersley, L.

Rodgers of Quarry Bank, L.

Hayman, B.

Rogers of Riverside, L.

Hilton of Eggardon, B.

Roll of Ipsden, L.

Hollis of Heigham, B.

Rooker, L.

Hohne of Cheltenham, L.

Roper, L.

Howarth of Breckland, B.

Russell, E.

Howe of Idlicote, B.

Russell-Johnston, L.

Howells of St. Davids, B.

Sainsbury of Turville, L.

Howie of Troon, L.

St John of Fawsley, L.

Hoyle, L.

Saltoun of Abernethy, Ly.

Hughes of Woodside, L.

Sandwich, E.

Hunt of Chesterton, L.

Sawyer, L.

624

Scotland of Asthal, B.

Tope, L.

Scott of Needham Market, B.

Tugendhat, L.

Selborne, E.

Turner of Camden, B.

Sharp of Guildford, B.

Wallace of Saltaire, L.

Sheldon, L.

Walmsley, B.

Shutt of Greetland, L.

Walpole, L.

Simon, V.

Warner, L.

Simon of Glaisdale, L.

Warnock, B.

Smith of Clifton, L.

Warwick of Undercliffe, B.

Smith of Leigh, L.

Watson of Richmond, L.

Stone of Blackheath, L.

Wedderburn of Charlton, L.

Symons of Vernham Dean, B.

Whitaker, B.

Tanlaw, L.

Whitty, L.

Taverne, L.

Wigoder, L.

Taylor of Blackburn, L.

Wilkins, B.

Temple-Morris, L.

Williams of Elvel, L.

Thomas of Walliswood, B.

Williams of Mostyn, L. (Lord Privy Seal)

Thomson of Monifieth, L.

Wilson of Tillyom, L.

Thornton, B.

Woolmer of Leeds, L.

Tomlinson, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.57 p.m.
26AC Lord Jenkin of Roding moved, as an amendment to the Motion that the House do not insist on its Amendment No. 26 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof, leave out from "26" to end and insert ", do disagree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof, and do propose the following amendments in lieu of the Commons amendments—
26AD Page 27, line 39, at end insert "provided that such regulations shall cover married couples, unmarried couples consisting of a man and a woman living together and single persons, but shall not cover couples of the same sex"
26AE Page 83, line 28, leave out "(whether"
26AF Page 83, line 28, leave out "or the same sex)" "
On Question, amendments negatived.
On Question, Motion agreed to.
LORDS AMENDMENTS
32 Clause 48, page 29, line 41, after "a" insert "married"
The Commons disagreed to Lords Amendment No. 32 but propose Amendments Nos. 26A to 26UU in lieu thereof.
33 Clause 49, page 30, line 15, after "a" insert "married"
The Commons disagreed to Lords Amendment No. 33 but propose Amendments Nos. 26A to 26UU in lieu thereof.
34 Page 30, line 17, after "a" insert "married"
The Commons disagreed to Lords Amendment No. 34 but propose Amendments Nos. 26A to 26UU in lieu thereof.
35 Clause 50, page 30, line 24, leave out subsection (2)
The Commons disagreed to Lords Amendment No. 35 but propose Amendments Nos. 26A to 26UU in lieu thereof.
36 Page 30, line 28, at end insert—
"( ) the person is married to a parent of the person to be adopted,"
The Commons disagreed to Lords Amendment No. 36 but propose Amendments Nos. 26A to 26UU in lieu thereof.
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do not insist on their Amendments Nos. 32 to 36 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof.

625
Moved, That the House do not insist on their Amendments Nos. 32 to 36 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 26A to 26UU in lieu thereof.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
7 p.m.
LORDS AMENDMENT
41 Insert the following new clause
"Power to modify sections 82 and 84(1) Regulations may provide for section 82 not to apply if—

(a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child, and any prescribed conditions are met.

(2) Regulations may provide for section 84(1) to apply with modifications, or not to apply, if—

(a)the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or

(b) the prospective adopter is a step-parent of the child, and any prescribed conditions are met.

(3) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the Assembly."
The Commons agreed to this amendment with the following amendments—
41A Line 7, leave out "step-parent" and insert "partner of a parent".
41B Line 13, leave out "step-parent" and insert "partner of a parent".
41C Line 14, at end insert—"( ) On the occasion of the first exercise of the power to make regulations under this section—

(a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and

(b) accordingly section 135(2) does not apply to the instrument."

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 41A to 41C to Lords Amendment No. 41. I shall speak also to Amendments Nos. 58A, 61A, 93A and 96A.
As we discussed at Third Reading, Amendments Nos. 41, 58, 61, 93 and 96 relate to the application of the inter-country adoption provisions to parents, guardians, relatives and step-parents. We have received representations from inter-country stakeholder groups expressing concern that parents, relatives, guardians and step-parents were excluded from the restrictions on inter-country adoption. We listened to those concerns and agreed that the issue needed to be addressed.
We therefore tabled amendments to Clauses 82, 84 and 128, to Schedule 4 and to insert a new clause. These amendments remove the specific exemptions of parents, guardians, relatives and step-parents from the inter-country provisions and replace them with powers to make regulations exempting those groups should it prove appropriate. The powers include powers to
626
specify that parents, relatives, guardians or stepparents are exempted only if certain conditions are met. The amendments allow us to strengthen the safeguards on inter-country adoption that we are putting in place through the Bill.
Amendment No. 41 inserts a new clause after Clause 84 to provide regulation-making powers to provide for Clause 82 not to apply and for Clause 84(1) to apply with modification or not to apply to parents, guardians, relatives and step-parents where any prescribed conditions are met. Amendments Nos. 58 and 61 make the equivalent changes to the Adoption (Scotland) Act 1978 to replace the exemption of parents, guardians, relatives and step-parents in the provisions in that Act on inter-country adoption with the regulation-making power.
Amendments Nos. 93 and 96 make the equivalent changes to the Adoption Act 1976. The Government tabled a number of amendments to those amendments in the other place relating to the parliamentary procedure to be applied to regulations to he made under the provisions and the use of the term "stepparent". Amendment No. 41 provides that the regulation-making power in the new clause would be subject to the negative resolution procedure.
That is consistent with the approach taken to regulations made under Clause 82 and the majority of the Bill. The negative resolution procedure would also apply to the regulation-making powers inserted by Amendments Nos. 58, 61, 93 and 96, which is consistent with the approach taken to regulations under the 1978 and 1976 Acts.
A memorandum was submitted to the Delegated Powers and Regulatory Reform Committee explaining the amendments. As the House will be aware, the committee took the view that it would be preferable if a way could be found to apply the affirmative procedure at least for the first exercise of the power of the new clause inserted by Amendment No. 41.
We fully understand that view, and I indicated that we would table amendments to reflect the committee's view. Amendment No. 41C does that. It provides that the first set of regulations under the new clause may be made only if a draft of the regulations has been approved by a resolution of both Houses of Parliament.
The committee recommended that the affirmative resolution procedure should be applied only to the first exercise of the power in the new clause inserted by Amendment No. 41. However, the Government consider it would be appropriate to provide for the affirmative resolution procedure to apply to the first regulations made under the powers inserted by the amendments to the equivalent provisions in the 1976 and 1978 Acts. The amendments to Amendments Nos. 58, 61, 93 and 96 therefore have the same effect for the equivalent procedures of those Acts.
Amendments Nos. 41A and 41B are needed as a result of the Vote that has just taken place on joint adoption by unmarried couples. As part of the package of amendments we supported earlier, we

627
confirm that the Bill should allow for unmarried couples falling within the definition we have restored to Clause 139 to be able to adopt their partners' children without the natural parent having to adopt their own child in the same way as married step-parents may under Clause 50.
Under the restored definition of "couple" in Clause 139, the term "partners of parents" includes both married step-parents and each partner in a couple falling within the definition of unmarried couple. As I have explained, Amendment No. 41 inserts a power to modify the application of the restrictions in Clauses 82 and 84 on taking children in and out of the country for the purposes of adoption to relatives, parents, step-parents and guardians.
Given the change made by our earlier amendments on unmarried couples, we need to make corresponding changes in this modification power to ensure that it can apply to adoptions by partners, married or unmarried, rather than just to step-parents. That is what Amendments Nos. 41A and 41B deliver. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 41A to 41C to Lords Amendment No. 41.—(Lord McIntosh of Haringey.)
Baroness Barker: My Lords, this has been a strange day; indeed, it has been a strange Bill. I commented to the noble Lord, Lord Strathclyde, some days ago, that one could never have predicted the alliances that have formed at different times on the Bill. But we are back to normal because we are talking about regulatory powers.
On this side of the House we repeat our usual mantra on such occasions that it is important that they are made by affirmative resolution. I believe that that is what the Minister was saying. As ever, I believe that that is right, particularly in the light of the decision that we have just taken. All noble Lords have a right and a duty to satisfy themselves that the regulations flowing from that decision are the correct ones.
It is more right than ever that we should have affirmative resolutions on the regulations. Perhaps the noble Earl, Lord Howe, has been too much exerted this afternoon, but I lend my weight to his case on that matter. I thank the Minister for the amendments, which we are happy to accept.
On Question, Motion agreed to.
LORDS AMENDMENT
44 Before clause 110, insert the following new Clause—
"Orders with respect to children
In section 8 of the 1989 Act (residence, contact and other orders with respect to children) there is inserted—
"(5) The Lord Chancellor may make regulations providing for the separate representation of children in specified circumstances relating to any matter arising from proceedings under this section."".
The Commons disagreed to Lords Amendment No. 44 but propose Amendment No. 44A in lieu thereof—
44A Page 68, line 25, at end insert the following new Clause—
"Interests of children in proceedings
(1) In section 41 of the 1989 Act (specified proceedings) —
(a) in subsection (6), after paragraph (h) there is inserted—
"(hh) on an application for the making or revocation of a placement order (within the meaning of section 20 of the Adoption and Children Act 2002);",
(b) after that subsection there is inserted—"(6A) The proceedings which may be specified under subsection (6)(i) include (for example) proceedings for the making, varying or discharging of a section 8 order."(2) In section 93 of the 1989 Act (rules of court), in subsection (2), after paragraph (b) there is inserted—"(bb) for children to be separately represented in relevant proceedings,""
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 44 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 44A in lieu thereof.
Amendment No. 44A seeks to meet the spirit of the amendments made in this House on Report. It provides for the representation of children in court proceedings concerning their future but eliminates the technical flaws and duplications in the amendments.
I should make it clear that neither the amendments made in this House, nor indeed the Government's own amendment, add to the existing powers of either my noble and learned friend the Lord Chancellor or the courts. The courts can already order that a child can be made a party and separately represented in any family proceedings. However, the Government have listened to and respect the views expressed in both this House and the other place that those powers should be explicit in primary legislation.
The Government's amendment therefore makes it clear in primary legislation that applications for the making or revocation of a placement order under the Bill will be specified proceedings as defined by Section 41(6) of the Children Act 1989. As such, a children's guardian will be appointed and the child separately represented in every case. This point has been raised in debates in both this House and the other place and the Government have already stated publicly that we will make such proceedings specified. The amendment makes that commitment clear in the Bill.
The amendment provides that proceedings for Section 8 orders such as for contact or residence in circumstances to be established by rule of court can also be specified proceedings. That will give us the necessary flexibility to take into account the outcome of public consultation on the representation of children in private law proceedings. We hope to commence consultations later this year, using Section 64 of the Family Law Act 1996 as a basis to amend Section 93 of the Children Act on rules of court to provide for the Lord Chancellor to make rules to provide for the separate representation of children. My noble and learned friend the Lord Chancellor can already make such rules and has done so, but the amendment makes that explicit in primary legislation. The government amendment will apply to all proceedings under the Children Act, including applications for parental responsibility and special guardianship orders.

629
The Government recognise that this amendment is not enough on its own to meet the concerns expressed both in this House and in another place. We need to ensure that these provisions work in practice. We are hoping to commence full public consultation later this year on how we ensure children have a voice in decision-making concerning their future. As I mentioned on Report, we need to ensure that we take account of the views of children and of young people, together with those who represent them, in devising a flexible system that takes account of children's diverse needs.
Consultation will enable us to identify whether there are categories of private law case that should be designated as "specified proceedings", and whether further guidance is needed for the courts on the types of cases where children should be made parties and separately represented. This is intended to meet two areas of concern expressed in your Lordships' House and in the other place: first, that there is too stark a distinction between the way that children are represented in public law cases where the state intervenes in a family's life—for example, care proceedings—and in private law disputes between individuals; and, secondly, that there should be greater consistency of approach. There will also be full consultation on how the voice of the child can best be heard in adoption proceedings as part of the implementation process for this legislation.
I should state, again, that the Government's amendment does not change the existing position. Children can already be separately represented in any family proceedings. The government amendment is intended to make the commitment explicit on the face of primary legislation, thus recognising the crucial importance of listening to children when decisions are made about their future care. I commend the government amendment to the House.
Moved, That the House do not insist on their Amendment No. 44 to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 44A in lieu thereof.—(Baroness Scotland of Asthal.)
The Earl of Listowel: My Lords, I welcome the government amendment, which sets right many of the flaws and redundancies in the amendments that I tabled. It is doubly welcome because it extends the spirit in which I laid down my amendments. As the Minister said, the Government have sought to recognise the concern that there is too stark a difference between arrangements in private law proceedings and those in public law proceedings in which children are involved.
The Minister has ensured that the arrangements for separate representation for children that we requested are explicitly stated on the face of the Bill. There is now a mechanism that will encourage separate representation and allow it to be accessed more frequently by children in private law proceedings. I expect the Minister and her officials have probably spent quite some time on this in preparatory work. I hope that the noble Baroness will permit me to thank
630
both her and the officials in the department for putting that work into the amendment in response to my suggestions.
Following the consultation that the Minister is undertaking, I hope that this mechanism, combined with all the work that also must go into the process, will make it easier in the future for the separate representation of children to take place in private law proceedings; and, indeed, that, under certain circumstances that will be prescribed, separate representation will be the default setting for children in some parental disputes. I hope that noble Lords will also welcome the government amendment.
On Question, Motion agreed to.
LORDS AMENDMENT
46 Clause 112, page 63, line 29, at end insert— "(b) a birth parent;"
The Commons agreed to this amendment with the following amendment—
46A Line 2, leave out "birth"
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 46A to Lords Amendment No. 46.
This was a Liberal Democrat amendment accepted by the Government on Third Reading in this House on the understanding that we would need to table a technical correction in the Commons. I am sorry that the noble Lord, Lord Clement-Jones, is abroad at present and is not here to live his triumph.
The effect of Amendment No. 46 is to insert birth parents into the list in Clause 112(14F)(3), which states that if people require special guardian support services a local authority "may", or, if the Secretary of State requires, "must", assess such needs on request. We previously said that we could use the power in subsection (3)(c) to prescribe other people who may be assessed. This would be a means of including birth parents. We are sympathetic to the suggestion that we should provide a signal in the legislation that we anticipate that birth parents are likely to be key recipients of special guardianship support services. That is why we agreed to the amendment.
However, as I said when accepting the amendment, it is necessary to change the wording. The term "birth parent" is not one used in the Children Act. Therefore, we need to correct the wording to refer simply to "parent". That is the aim of Commons Amendment No. 46A. It achieves the intention behind the original amendment as the term "parent" will be given its natural meaning—the child's birth parents —or, in the case of adopted children under SGOs, their adoptive parents. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 46A to Lords Amendment No. 46.—(Lord Hunt of Kings Heath.)
7.15 p.m.
Baroness Barker: My Lords, I rise on behalf of my noble friend Lord Clement-Jones, who is abroad at present, to thank the Minister for picking up the intention behind our amendments. I should like also to take this opportunity to thank all noble Lords for their contributions. I have in mind in particular the noble Earls, Lord Howe and Lord Listowel, the noble Baroness, Lady Howarth of Breckland, and the Minister and his department. They have all helped to make this a better Bill. Many small amendments have been agreed during the course of our debates. They have made this a piece of legislation of which we can all be proud.
Lord Hunt of Kings Heath: My Lords, at the risk of incurring the wrath of my noble friend, I should like to respond by saying that this has been a Bill of great interest, and one upon which we have had many excellent debates. I believe that we have achieved consensus on many aspects of the legislation. I, too, should like to thank all noble Lords who have participated in our proceedings. I thank especially the noble Earl, Lord Howe, and his colleagues on the Opposition Front Bench, the noble Baroness, Lady Barker, and her colleagues, together with other noble Lords, for the great spirit in which we were able to discuss the legislation. I believe it to be a tremendous Bill.
On Question, Motion agreed to.
LORDS AMENDMENTS
48 Before Clause 118, insert the following new Clause—
"Powers of court in certain family proceedings
In section 37 of the 1989 Act (powers of court in certain family proceedings) there is inserted—
"(7) Where in any family proceedings in which a question arises in respect to the welfare of any child, the court shall have particular regard on the evidence before it to—

(a) the wishes and feelings of the child considered in the light of his age and understanding;

(b) the need for the separate representation of the child concerned, and upon making an order for separate representation the court may appoint a children's guardian; and these shall be considered specified proceedings within the meaning of section 41 of this Act.""

The Commons disagreed to Lords Amendment No. 48 but propose Amendment No. 44A in lieu thereof.
49 Insert the following new Clause—
"Proceedings relating to representation of child
In section 41(6) of the 1989 Act (representation of child and of his interests in certain proceedings) there is inserted—
"(j) on applications under section 8 in specified circumstances to be established by rules of court,"."
The Commons disagreed to Lords Amendment No. 49 but propose Amendment No. 44A in lieu thereof.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on their Amendments Nos. 48 and 49, to which the Commons have disagreed. I spoke to these amendments when dealing with Amendment No. 44.
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Moved, That the House do not insist on their Amendments Nos. 48 and 49 to which the Commons have disagreed.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
LORDS AMENDMENT
58 Clause 128, page 74, line 32, at end insert—
"( ) In section 50 of the Adoption (Scotland) Act 1978 (restriction on removal of children for adoption outside Great Britain) —

(a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,

(b) after subsection (3) there is inserted—"(4) The Scottish Ministers may by regulations provide for subsection (1) to apply with modifications, or not to apply, if—(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or(b) the prospective adopter is a step-parent of the child, and any conditions prescribed by the regulations are met.""

The Commons agreed to this amendment with the following amendment—
58A Line 13, at end insert—
"(5) On the occasion of the first exercise of the power to make regulations under subsection (4)—

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of the Scottish Parliament, and

(b) accordingly section 60(2) does not apply to the statutory instrument containing the regulations."

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 58A to Lords Amendment No.58.
Moved, That the House do agree with the Commons in their Amendment No. 58A to Lords Amendment No. 58.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
LORDS AMENDMENT
61 Page 75, line 46, at end insert—
"( ) Regulations may provide for this section not to apply if—

(a0) the adopters or (as the case may be) prospective adopters are natural parents (whether or not they have parental responsibilities or parental rights in relation to the child), natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child, and any prescribed conditions are met."

The Commons agreed to this amendment with the following amendment—
61A Line 8, at end insert—
"(9B) On the occasion of the first exercise of the power to make regulations under subsection (9A) —

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of the Scottish Parliament, and

(b) accordingly section 60(2) does not apply to the statutory instrument containing the regulations."

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 61A to Lords Amendment No. 61. I have already spoken to these amendments.

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Moved, That the House do agree with the Commons in their Amendment No. 61A to Lords Amendment No. 61. —(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
LORDS AMENDMENT
66 Clause 139, page 83, line 26, leave out subsection (4) to (7)
The Commons disagreed to Lords Amendment No. 66 but propose Amendments Nos. 26A to 26UU in lieu thereof.
66A
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do not insist on their Amendment No. 66 to which the Commons have disagreed. I spoke to this amendment when dealing with Amendment No. 26.
Moved, That the House do not insist on their Amendment No. 66 to which the Commons have disagreed.—(Lord Hunt of Kings Heath.)
[Amendment No. 66A not moved.]
On Question, Motion agreed to.
LORDS AMENDMENT
93 Schedule 4, page 112, line 18, at end insert—
"9B In section 56 of the Adoption Act 1976 (restriction on removal of children for adoption outside Great Britain) —

(a) in subsection (1), "not being a parent or guardian or relative of the child" is omitted,

(b) at the end of that section there is inserted—

"(4) Regulations may provide for subsection (1) to apply with modifications, or not to apply, if—

(a) the prospective adopters are parents, relatives or guardians of the child in question (or one of them is), or

(b) the prospective adopter is a step-parent of the child, and any prescribed conditions are met.

(5) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the National Assembly for Wales.""
The Commons agreed to this amendment with the following amendment—
93A Line 14, at end insert—
"(4A) On the occasion of the first exercise of the power to make regulations under subsection (4)—

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of each House of Parliament, and

(b) accordingly section 67(2) does not apply to the statutory instrument containing the regulations."

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 93A to Lords Amendment No. 93.
Moved, That the House do agree with the Commons in their Amendment No. 93A to Lords Amendment No. 93.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
LORDS AMENDMENT
96 Page 113, line 33, at end insert—
"( ) Regulations may provide for the preceding provisions of this section not to apply if—
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(a) the adopters or (as the case may be) prospective adopters are natural parents, natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child, and any prescribed conditions are met."

The Commons agreed to this amendment with the following amendment—
96A Line 8, at end insert—
"(8B) On the occasion of the first exercise of the power to make regulations under subsection (8A)—

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of each House of Parliament, and

(b) accordingly section 67(2) does not apply to the statutory instrument containing the regulations."

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 96A to Lords Amendment No. 96.
Moved, That the House do agree with the Commons in their Amendment No. 96A to Lords Amendment No. 96. (Lord McIntosh of Haringey.)
On Question, Motion agreed to.

Chinook ZD576: Select Committee Report
7.20 p.m.
Lord Jauncey of Tullichettlerose to move, Thai this House takes note of the report of the Select Committee on Chinook ZD576 (HL Paper 25).
The noble and learned Lord said: My Lords, the report before your Lordships relates to a Chinook helicopter that had recently undergone a mid-life update. During that process, an automatic fuel system commonly known as FADEC was installed. It was designed to keep the aircraft's two rotors turning at 100 per cent speed to ensure that the blades were kept properly apart by centrifugal force.
At the time of the accident there had been problems with the FADEC—five in normal flight. On 1st June 1994, the day before this tragic accident, a problem arose at Boscombe Down, the research establishment, which operators were unable to trace because of an apparent difficulty in verifying the computer software involved. The establishment had, therefore, grounded Chinooks for the time being. They remained grounded at Boscombe Down until October 1994. There had also been other malfunctions with Mark 2 Chinooks; that is to say, Chinooks that had undergone their mid-life update. The malfunctions included spurious engine fail captions, undemanded flight control movements (UFCMs), undemanded engine run-up, engine shut down and torque mismatches between the engines.
On 10th May, Chinook ZD576 had suffered a detached balance spring bracket in a confined space, where its controls were kept. There is doubt about whether that caused a UFCM or whether it merely affected the controls. The report of the board of

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inquiry referred to it as a UFCM. The president of the board giving evidence to the committee said that it was an alteration in the field.
The flight in question, from Northern Ireland to Inverness, was made by a special forces crew that was very experienced in flying helicopters. The senior sergeant load master was also reckoned to be a very good navigator. They planned the flight under visual flight rules (VFR). Owing to icing restrictions imposed on Mark 2 Chinooks as a result of the difficulty that had been experienced in verifying the software, the entire flight could not have been carried out under instrument flight rules, given the high hills that would be encountered in Lochaber. The crew was aware that fog and low cloud were covering the Mull of Kintyre. The crash took place in cloud at 810 feet above sea level, a short distance inland from the lighthouse on the Mull.
All crew and passengers were killed, probably instantaneously, in this tragic accident. The RAF immediately set up a board of inquiry. An RAF inquiry consists of an initial board that hears evidence and makes investigations whose findings are reviewed by reviewing officers. I shall refer to the initial board as "the board" by contrast to "the reviewing officers" to make the details easier to follow.
The initial board was set up immediately. It flew to the site of the accident and spent many months producing a detailed report. It concluded that the flight captain, Flight Lieutenant Tapper, who was the non-handling pilot, had committed an error of judgment and that the co-pilot, who was handling, was not at fault. The board scouted many potential mechanical defects, which, it concluded, it was unable to exclude as possible causes. However, it was unable to determine any definitive cause.
Two years later, a fatal accident inquiry was conducted in the sheriff court of Paisley by a very experienced sheriff, Sir Stephen Young, who is now Sheriff Principal of Grampian Highlands and Islands. The inquiry lasted 16 days, and the sheriff produced a 123-page judgment. Applying the standard of proof required in a fatal accident inquiry, namely the balance of probabilities, the sheriff was unable to determine the cause of the accident, although it was his statutory duty to do so. It follows that, if the sheriff had been asked to make a finding of negligence, he could not have done so. Without a cause, a finding of negligence cannot be made.
In 2000, the Public Accounts Committee of another place rejected the finding of the board, and, on 30th May 2001, the House of Lords Select Committee was appointed. Our remit was as follows:
"To consider the justification for the findings of those reviewing the conclusions of the RAF board of inquiry that both pilots of the Chinook helicopter which crashed on the Mull were negligent".
The standard of proof has been an important aspect of the inquiry. The RAF rules included the following provision:
"Only in cases in which there is absolutely no doubt whatsoever should deceased air crew be found negligent".
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That standard of proof is far higher than the civil standard of proof, on the balance of probabilities, and the criminal standard, beyond reasonable doubt. The reason for such a high standard is fairly obvious: a deceased pilot is not there to explain his actions to a board and has no-one to represent his interests at that board.
The committee considered its remit carefully and concluded that it was required simply to look at the evidence that was available to the board and the reviewing officers. It was even suggested that we could dispose of the matter simply by looking at the remarks of the two senior reviewing officers and dealing with it on that basis. We concluded that the House expected more from us, so we called some evidence and looked at many documents. I propose to address your Lordships, as briefly as possible, on two bases: first, on the basis of the material that was before the board and the reviewing officers, and, secondly, on the basis of the material before us, including what was before the board. I should explain that the reviewing officers had no evidence to consider other than that which had been considered by the board.
We had evidence from a yachtsman, who was the only person who saw the aircraft between the time it left the coast of Antrim and the time it crashed. We also had the evidence of the senior inspector from the Air Accidents Investigation Branch at Farnborough, who had provided the board with a comprehensive and detailed report.
The aircraft carried neither accident data recorder nor cockpit voice recorder. There was no black box, so there was nothing to work on in that line. The investigator could only try to piece together events from what was left of the aircraft on the hill.
The task of Mr Cable, the investigator, was made very difficult by the lack of evidence available, because the aircraft not only hit the ground twice and was seriously damaged by that, but also caught fire, resulting in a great many components being damaged. Some help was enlisted from the manufacturers.
I must say a word about the navigation equipment that was carried. It was a device manufactured by Racal, which has been referred to as SuperTANS. For convenience I shall refer to it simply as TANS. A number of waypoints on the projected flight could be fed into it before the flight started. When the first waypoint was put in, a screen in the cockpit showed the distance and bearing of that waypoint and the time to go, which was calculated from the current speed of the aircraft. As the display was constantly updated, on a constant bearing the distance would decrease. If the course was altered, the bearing would decrease.
In this case, the Mull of Kintyre lighthouse was chosen as waypoint A. Waypoint B was the narrows of Corran on Loch Linnhe. The TANS was never intended as a flight recorder, but, with considerable ingenuity, Racal extracted two pieces of information from it. First, the waypoint was changed from A to B

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when the lighthouse, which was the first waypoint, was bearing 18 degrees true and 0.81 nautical miles distance.
Lord Gilbert: My Lords, I apologise to the noble and learned Lord, but I thought he said that the first waypoint was the lighthouse. My recollection is that the first waypoint was before the lighthouse.
Lord Jauncey of Tullichettle: My Lords, my understanding was that the first waypoint was the lighthouse, albeit the waypoint change was made before the lighthouse was reached.
Lord Gilbert: My Lords, I am a tiro in these matters, but it would make no sense to have the lighthouse as a waypoint, because the aircraft would crash into the lighthouse.
Lord Jauncey of Tullichettle: My Lords, no doubt I shall stand corrected, but—
Lord Rotherwick: My Lords, is it correct that the first waypoint selected was approximately 280 metres to the north-east of the lighthouse, because the co-ordinates had been incorrectly put into the SuperTANS?
Lord Jauncey of Tullichettle: My Lords, that is partially correct. There was a minor error in the TANS navigation system that contributed to part of the 280 metres. However, the waypoint was certainly on land. The noble Lord, Lord Gilbert, may find it curious, but that is what we were told.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, I am sorry to interrupt the noble and learned Lord, but I think that my noble friend Lord Gilbert is wrong. The waypoint can be on land or at sea. The relevant point is when the helicopter flies over it or close to it. I think that is what the noble and learned Lord was saying. I do not want to interrupt the noble and learned Lord, but I hope that is for the benefit of the House.
Lord Jauncey of Tullichettle: Anyway, my Lords, when waypoint A, whatever it may have been—if noble Lords prefer that—was bearing as I have said, the waypoint was changed to B. That removed from the screen all reference to waypoint A—no distance, no bearing—and substituted the bearing, distance and time to go for Corran. However, notwithstanding that alteration, the aircraft flew on into the Mull.
This is a matter of considerable importance, because one would normally expect that when a waypoint was changed, the aircraft would alter course to the next waypoint that came up on the screen. Mr Cable, the inspector, found that there were a number of detachments of items in what was described as the broom cupboard—a small cupboard at the rear of the cockpit in which were housed most of the hydraulic controls for the rotors and other parts of the helicopter. He could not dismiss the possibility of some
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pre-impact detachment of the control system jam. Paragraphs 33 to 35 on page 68 of the House of Lords Paper 25(i) set that out clearly. I shall not trouble your Lordships by reading through that.
Mr Cable came to the conclusion that there had been some last manoeuvre of the aircraft before it finally crashed. The manoeuvre involved the aircraft climbing up in a flare. To try to find out more about that, he asked Boeing, the aircraft manufacturer, to do a simulation. He gave the details of the position of the aircraft and such information about its mechanical state as he could find. Boeing came back with the answer that the only speed and rate of climb that could be matched to a situation immediately before the final flare was an air speed of 150 knots and a rate of climb of 1,000 feet per minute, followed by the final flare, which was a much steeper climb with the nose up, but that had been initiated four seconds before the final impact and had started 2.9 seconds before. The difference of 1.1 seconds is the time that it took for the action of the flare to take effect.
The board referred to various unforeseen malfunctions of the HC Mark 2 Chinooks, such as undemanded engine shutdown, undemanded engine run-up, serious engine fail captions and misleading and confusing cockpit signs. There was no positive evidence that any of those things had happened, but the board was not prepared to discount that such might have happened without trace. The board also assumed that the crew of the aircraft had not seen the Mull at the waypoint change, but made no comment on the failure of the aircraft to alter course after making that change. At the end of the day it concluded that the cause of the crash was the selection by the pilots of an inappropriate rate of climb to overfly the Mull. As I say, it found that the captain of the aircraft was guilty of an error of judgment but that the non-handling pilot was not.
The matter was then subjected to the reviewing officers. The group captain at Aldergrove reckoned that the exact train of events could never be determined with certainty. The group captain at Odiham, Air Commodore Crawford, who gave evidence to us, thought that it was highly probable that the crew had seen the coast and had decided to fly VFR up the west side of the Mull. He considered that the changing of the waypoint on the navigating system was absolutely crucial as it was entirely appropriate if it was the intention of the crew to fly VFR up the side of the Mull, but wholly inappropriate if in fact they intended to fly on into the cloud covered Mull. However, he reckoned that the evidence was not sufficient to be specific about any human failings.
Air Chief Marshal Day, as he then was—now Sir John Day—reckoned that none of the possible factors and scenarios postulated by the board and by the group captain were so strong that they would have prevented such an experienced crew from maintaining safe flight. He found both pilots negligent to a gross degree. They should have turned away on approaching cloud or reduced speed and climbed. However, he went on to say that it was incomprehensible that the pilots had acted as they did. By referring to the factors not

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being so strong, it appeared that he was not applying the appropriate standard of proof. Air Chief Marshal Sir William Wratten agreed with him. He reckoned that there was not even a hint of circumstances beyond the pilots' skill to accommodate. He, likewise, made no comment on the waypoint change.
The air marshals merely proceeded on the basis that the required standard of proof was satisfied if no positive evidence of cause other than negligence could be found. That, of course, overlooks the board's view that there were possible malfunctions which left no trace and also the inspector's view, or his refusal to dismiss the possibility of a control jam. Taking the report as it stood, your Lordships' Committee considered that the air marshals had failed to apply the correct standard of proof and that their conclusions were therefore defective.
That was basis one. Our second basis was reached after we heard evidence. We heard evidence from both air marshals; Air Commodore Crawford; the president of the board; the yachtsman, Mr Holbrook; an inspector; and from two airmen, Squadron Leader Burke, who was a maintenance test pilot at Odiham, and Witness A, who was a highly decorated special forces pilot. Mr Holbrook, Air Commodore Crawford and Witness A all thought that the crew would have seen the shoreline of the Mull below the cloud level which was at about 300 feet, particularly as there was at the time a 25 knot onshore wind. With the consequent breakers the shoreline must have been fairly readily visible. The two RAF witnesses had no doubt that the changing of the waypoint was consistent with an intent to fly visual flight rules west of the Mull. As I say, the change of waypoint was not a matter that was addressed at all by the air marshals.
As I say, Mr Cable refused to dismiss the possibility of a control jam. Both Squadron Leader Burke and Witness A were of the view that that was the most likely cause of the aircraft carrying on flying into the hill. The air marshals, however, assumed that the pilots had made a conscious decision to fly into cloud and that the negligence consisted of their failure to reach safety altitude before reaching the Mull. That, of course, would have meant going into instrument flying rules.
Sir John Day was at pains to point out that his conclusions were based on fact, but, when they were examined, it was clear that some of them were merely hypotheses or assumptions. We set the matter out fairly clearly in paragraphs 135 and 136 of our report.
The Boeing simulation was relied on as showing that ZD576 was under control during the last four seconds of flight, from which assumption was made that it was under control from the waypoint change to impact. But it was demonstrated that the simulated prediction speed of 150 knots and 1,000 feet rate of climb prior to the final flare was not possible in practice. Witness A tried it and could not produce a rate of climb at that speed. Sir John Day had a mathematical simulation carried out and could not achieve more than 650 feet a minute at a speed of 150 knots. It is probably fair to say now that the subsequent Boeing simulation altered
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the position slightly. But the Boeing simulation did not cast any light on whether the aircraft was or was not under control at the time that the reputed flare occurred. We took the view that the evidence was not such as to enable it to be said that there was absolutely no doubt whatsoever that the aircraft was under control during the last four seconds. There was no positive evidence that it was under control and no negative evidence to exclude the flare occurring as a result of malfunction.
As I say, the Boeing simulation does not throw any light on that. But even if the aircraft was under control during the last four seconds, that does not help to determine what the position was between the making of the waypoint change and the time when the flare started. Both the air marshals conceded that they could not exclude the possibility of a control jam having occurred, but considered that the pilots were grossly negligent in approaching so close to the Mull when they made the waypoint change. That assumed a continued high speed from the waypoint change and an inability to see the land mass. But, again, that does not take account of the fact that had the pilots reduced speed after the waypoint the radius of turn would have been substantially decreased, and that if they were in danger by being at the waypoint on an assumed continuation of their course and speed, that danger could have been eliminated by reducing speed. A very helpful document was produced by the MoD after we had completed our deliberations—indeed, our report was nearly finished. It showed the effect of speed on the turning circle of this aircraft and certain degrees of bank. That demonstrated the dramatic effect that would be achieved in reducing the radius by reducing the speed.
The cloud was hugging the Mull. We know that that was the evidence from the yachtsman. There is no suggestion that the cloud came out past the sea; the evidence of the yachtsman rather suggested the contrary: that it was hugging the hills. One has to ask: first, what possible reason would there be for the pilots to make a waypoint change, which lost them all reference to the lighthouse or the point somewhat to the east of it? Secondly, knowing that there was cloud ahead—they had been warned of that before they had left—and presumably could see it, as the yachtsman could, why should they wish to abandon the visual flight rules and convert to IFR? In order to do that they would have had to have climbed very much higher than they did.
In summary on that matter, the committee concluded that the pilots probably saw the coastline at the waypoint. It would have been normal in that situation to have altered course. There was no apparent reason for departure from what was normal. Why fly into cloud under VFR when they must have known that it was there? I suggest that in that situation one has to look very hard at the possible malfunctions that could have occurred. It cannot be said that there was absolutely no doubt that it was their negligence, and not a malfunction that left no trace, that was responsible.

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It only remains for me to deal with the answers from the MoD. I should explain that along with its answers was produced what I can only describe as a tome from Boeing, extending to 160 or 170 pages, including graphs and all sorts of pieces of information that are fascinating, no doubt, to those who understand them. I do not propose to deal with Boeing's latest effusion; I am content to leave that to my noble friend Lord Tombs, who is far more able and better equipped to deal with it than I am.
Finally, I turn to the MoD response. It refers in paragraphs 10, 11 and 12, to the fact that 576 could not have reduced speed to 80 knots by the time the waypoint was changed. Mr Holbrook said that he thought that the speed of the aircraft when he saw it was 80 knots, but there is no other such suggestion; we certainly did not suggest it, and Mr Holbrook had never seen a Chinook previously. He wanted to see one before giving evidence to the board and asked if he could but was never afforded the opportunity. There is really no evidence—and the committee did not rely on any suggestion—that the aircraft was doing only 80 knots at the waypoint change.
At paragraph 15 of section 1 of the MoD response, it is said that it was implausible that any jam could have cleared itself before the final manoeuvre without trace. First, that assumes that 576 was under control at the time of the flare—that any jam had disappeared by that time without trace. In any event, what about all of the detached inserts in the broom cupboard, which could have jammed? We know that there had previously been jams. What about the inserts that were found detached after the crash?
It was also said that the detached balance spring bracket, which was found on the previous occasion in this aircraft. only alters the feel of the control. Squadron Leader Burke differed from that. More important was an engineering report to which we refer in paragraph 56 of our report, which makes it clear that such a displacement was a very serious flying hazard.
We are then referred in the report to the inescapable conclusion that controlled flight into terrain was involved. We all agree that it was flight into terrain but to say that it was "controlled" begs the question. The issue is whether the aircraft was or was not under control at the time.
In paragraph 23 of section 1, the MoD again refers to the pilots failing "to take avoiding action". If they had and the aircraft was under control throughout, and they had just flown straight on into the Mull with no problems, I do not believe that anyone would dispute that they were at fault. That, we submit, is not really what happened.
It is suggested at paragraph 10 in section 2 that the pilots made a conscious decision not to follow the route directed to Corran. There is no suggestion as to the reasons why they made such a decision and it means, as I said, that they had abandoned the intention to fly VFR but voluntarily headed to cloud, knowing that sooner or later they would have to convert to instrumental flight rules although they had not taken any necessary steps to do that.
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The MoD refers in its response to the speed at the waypoint change. The committee found that the speed was unknown; there was no evidence because although one can deduce speed from a current screen under the heading, "Time to go", that could not be extracted by Racal in relation to the original waypoint A.
The MoD also refers to the pre-impact detachment of a balance spring only affecting the feel of the controls. I have already made the point but refer again to the engineering report. It is said that it was implausible that the jam could have cleared itself before the final flare without trace. Again, I have dealt with that by referring to the state of the broom cupboard after the crash and the warning in the engineering report.
A good deal was made in the MoD answers about spurious engine fail captions. The report alleges that they could not have contributed directly. We would not dispute that. The purpose of referring to them is not that they would have affected the flight as such but that they would have provided a serious distraction to the pilots, who would be justified in thinking that the light was telling the truth. After all, it was not there only for ornamentation; it would not be unreasonable for them to have thought that it was performing its correct duty rather than acting spuriously.
Paragraph 23 of section 3 of the government response states that,
"all … hypotheses … are implausible … [no] known fact • does not fit … controlled flight".
That ignores the declared intent of the captain of the aircraft—Tapper—to fly VFR. It ignores the making of the waypoint change, with consequent loss of positioning relative to the Mull, and it assumes that the absence of positive signs of malfunction can be treated as proof that no such malfunction can have occurred. Notwithstanding the evidence of Mr Cable, the inspectorate could not dismiss the possibility of a restriction or jam, nor some other fact highly relevant to the accident.
When the air marshals said—this is repeated in the MoD answers—that the aircraft was in danger at the waypoint change, they were assuming that it was continuing at the speed at which it was then assumed—it is only an assumption—to be travelling; that is, at a fairly high speed. If the speed could have been. or had been, reduced and if, thereby, the radius of turn had been much reduced, then there is no basis for saying that, in that context, the aircraft would have been perilously close to the Mull. They say that there was no honest doubt of negligence. I submit that that, again, is not the standard which should be applied; namely, that of absolutely no doubt whatever. It comes far nearer the ordinary criminal standard of "beyond reasonable doubt".
I shall not say any more about Boeing. The other matter that I want to raise is that of negligence. The MoD criticises the committee's reliance on the test of negligence, which is referred to in the RAF's own guidance. It says that, in the test that we referred to, the pilot should have foreseen that action or failure to take

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action would in all probability occasion the final event. In response to that, the government response states that,
"dangerous flying exposing an aircraft merely to a very serious risk of crash, falling short of a probability could never be negligent, even if that risk were to materialise".
If the manner of flying was such that an aircraft was exposed to a serious risk, one would have thought that a properly trained and competent pilot should foresee the probable consequences of incurring that risk. If the results were fatal or catastrophic, then I should have thought that he would be negligent.
Prior to our doing so, the air marshals—albeit not in their initial remarks—concentrated on negligence at or before the waypoint change. We considered that matter in two stages and took the view that at the waypoint change they could be said to be negligent only if they should reasonably have foreseen that whatever action they took then or thereafter was likely to place flight 576 in a position of serious danger. Our position in relation to that is that reduction in speed and reduction of radius would have avoided that. Therefore, we concluded that that test was not fulfilled.
We then went on to consider whether subsequent negligence was the cause of the accident. I believe that we have already dealt with those matters—at least, I hope that I have. I do not believe that it is necessary for me to say any more about the MoD response. However, in short, we take the view that this has in no way met the points that we made in the report nor weakened the strength of our conclusions.
In drawing to a close, I should perhaps mention that our report does not in any way impugn the integrity or honesty of the air marshals. We simply think that they were over-generous in imputing to hypotheses and assumptions the attribution of fact and in applying a lower standard of proof than was required of them by the RAF rules.
I am very grateful to my colleagues on the committee for their assistance during the course of the hearings and for the preparation of our report. I believe we would all want to express our gratitude to our Clerk, Andrew Makower, for making all the arrangements. He had a great deal of work to do and had an immense amount of paperwork, with which he was supplied from all directions.
My noble friend Lord Chalfont has been good enough to keep me informed about the amendment which he has tabled tonight. I have thought carefully about my position in relation to that. It seems to me that, as I am moving the Motion that the House takes note of the report, it would be illogical if I then supported the amendment to my Motion. Therefore, I believe that the proper course will be to abstain if there is a Division on my noble friend's amendment. I beg to move.
Moved, That this House takes note of the report of the Select Committee on Chinook ZD576 (HL Paper 25).—(Lord Jauncey of Tullichettle.)
8.7 p.m.
Lord Tombs: My Lords, I was a member of the Select Committee whose report we are debating tonight. I am grateful to the noble Lord, Lord Chalfont, for agreeing to my speaking before he moves his amendment. Since what I have to say is complementary to the speech of my noble and learned friend, Lord Jauncey, I hope that this arrangement will be of assistance to the House.
We were very fortunate to have as our chairman my noble and learned friend, whose vast judicial experience guided the committee and whose painstaking fairness and objectivity permeated our deliberations. Since my colleagues were all eminent lawyers, I shall confine my remarks tonight to the engineering aspects of our report and those raised in the government response. I have spent most of my working life in the heavy electrical manufacturing, electricity supply, nuclear power and aero-engine industries, and so am no stranger to accident investigations.
This accident was very severe, not only in terms of the loss of so many lives but also in terms of the extensive damage to the aircraft. The technical side of an RAF accident investigation is carried out by the Air Accidents Investigation Branch (AAIB), which reports to the board of inquiry but plays no part in its conclusions.
There was no cockpit voice recorder or flight data recorder, despite previous recommendations that they should be fitted. The AAIB carried out a very thorough examination of the available evidence and remarked that that evidence was "remarkably thin". It reported that fire had,
"appreciably damaged 80 per cent of the aircraft and destroyed around 20 per cent".
It also reported that,
"few reliable signs of cockpit and cabin instrument indications at initial impact were found, due to gross initial shock loading on impact or deformation and subsequent impacts".
In conclusions 43 to 45 it said,
"Almost all parts of the flight control mechanical systems were identified, with no evidence of pre-impact failure or malfunction, although the possibility of control system jam could not be positively dismissed".
"Most attachments on both flight control system pallets had detached, including the balance spring bracket that had previously detached from ZD576's thrust/yaw pallet, with little evidence to eliminate the possibility of pre-impact detachment".
Significantly, it added:
"The method of attaching components to the pallets appeared less positive and less verifiable than would normally be expected for a flight control system application".
My final reference to the AAIB report, which is long and comprehensive, deals with the fracture of a tie-bolt in the linkage between the pilot controls and the hydraulic servos operating the flight control systems. The bolt was badly manufactured, with a second, redundant and roughly drilled split-pin hole in the threaded area. The AAIB report concluded that,
"although the means by which the overload had been applied was unclear, the failure had resulted due to impact forces".

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Like the AAIB, I have no hypothesis for the failure of this component in the control linkages, but the assumption faute de mieux that it resulted from impact serves to illustrate the extent of uncertainty resulting from the extensive damage.
As part of the AAIB investigation, and at the request of the board of inquiry, Boeing carried out a simulation of the final three or four seconds of the flight to see whether the attitude of the aircraft on impact could have resulted from a pilot-controlled flare. Boeing were given a series of possible conditions preceding those final seconds and were able to confirm that one of them was possible, involving an air speed, as my noble and learned friend said, of 150 knots and a rate of climb of 1000 feet per minute. That was interpreted by the board of inquiry, and the reviewing air marshals, as confirmation that the aircraft was under control at impact.
In oral evidence to us it became clear that the conditions relied upon were not achievable by a Chinook in those operating conditions, a conclusion accepted by Air Marshal Sir John Day following his own investigation. Although a later simulation by Boeing claimed that the aircraft was in fact able to achieve those flight conditions, that was only under carefully controlled and instrumented conditions and is properly referred to in the government response as "theoretical".
There seemed to be some misunderstanding in several stages of the inquiry as to the role of a simulation and a failure to realise that it can only indicate what might possibly have happened and not what in fact happened—a distinction accepted by Boeing in their later simulation report, to which I shall return later.
In summary, there was no factual evidence to indicate the reasons for the aircraft failing to turn at waypoint A, as the crew had decided, and no direct evidence that the aircraft was under pilot control at any time following the selected waypoint change.
There seemed to be a readiness on the part of the board of inquiry and some of the reviewing officers to accept that absence of evidence of a technical failure meant that there had not been a technical failure. That was a remarkable assumption, especially given the "remarkably thin evidence", the service experience and the various caveats of the AAIB report, some of which I have quoted.
I turn now to the Government response to the committee's report and I shall again confine my comments to the technical issues, with one exception. At a number of points in that response they refer to the reviewing officers as a body expressing opinions. Reviewing officers can be divided into two: two wing commanders and two air marshals and in general they were not in agreement. In general the wing commanders agreed with the report of the board.
Apart from that, the response contains some misleading statements. In paragraph 17 it suggests that detachment of the flight control inserts to the pallets, to which I referred earlier,
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"would result in a change in the feel of the controls and is readily detectable. The aircraft is still controllable—and moreover the AAIB report indicated that the pallets were likely to have become detached during the post-accident break up of the aircraft''.
The partial detachment of a single insert on a previous flight of this very aircraft did indeed lead to a change in feel of the controls, but a Royal Air Force engineering report on the following day said,
"Detachment of the bracket within the flying control cabinet during flight could present a serious flight hazard, with the danger of a detached bracket fouling adjacent flying controls".
That confirms the obvious, that detachment of one or more of those brackets in a very confined space could result in a total control jam. But even more misleading is the attempt to ascribe to the AAIB the view that the brackets were likely to have become detached as a result of the crash. On the contrary, as I said earlier, the AAIB report referred to
"little evidence to eliminate the possibility of pre-impact detachment",
and went on to comment unfavourably on the method of attachment.
Paragraph 15 of the response claims that it is implausible to suggest that a control jam occurred and then cleared itself. But that is exactly what happened to a US Army Chinook which almost crashed, and Air Chief Marshal Sir William Wratten, the senior reviewing officer, told us in evidence (Question 415) that he had experienced one such event himself. In any event it might be noted that the clearing of a possible control jam formed no part of the committee's findings; it was part of the MoD hypothesis that the aircraft was under control at the time of the crash.
I turn now to the further simulation work carried out recently by Boeing. It adds little to the previous work apart from being considerably more thorough. But two points should be brought to your Lordships' attention. First, Boeing suggests that its earlier simulation did not play a great part in the conclusions reached by the board of inquiry. That is contrary to a careful reading of the board of inquiry report and oral evidence to our committee by the reviewing air marshals.
More important is Boeing's constant and entirely correct insistence that a simulation cannot describe what actually happened. It said,
"The Boeing simulation was exactly that—a simulation, not a factual reconstruction".
More generally, and in a way applicable to much of the investigation—I apologise for this rather long quote but it is extremely important—it said:
"Since our primary interest is flight safety, our comments are based on balanced information and probability rather than absolute fact since, in the engineering safety realm at least, things are usually more approximate than absolute. In many instances with aircraft accidents, what may be considered as fact is not really fact at all and may even be contradictory of other 'facts'. For this reason every 'fact' must be weighed according to its relative probability of truth. It is rarely known with absolute certainty exactly what all the reasons for an aircraft accident are. One can only determine a most probable cause; as many accidents in the past have demonstrated, even with cockpit voice recorders and flight data recorders, there is always room for doubt".

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I agree wholeheartedly with that standpoint but, taken in conjunction with the "remarkably thin evidence", it supports the conclusion of the committee that the conclusions of the board of inquiry did not satisfy the rigorous standards of absolute certainty required of them.
8.19 p.m.
Lord Chalfontrose to move, as an amendment to the above Motion, to leave out all the words after "House" and to insert "accepts the report of the Select Committee on Chinook ZD576 and calls upon Her Majesty's Government to set aside the finding of gross negligence against the two pilots".
The noble Lord said: My Lords, I beg leave to move the amendment standing in my name on the Order Paper. I have already written to many noble Lords with an explanation and even something of an apology for my amendment to the Motion of the noble and learned Lord, Lord Jauncey, which is a "take note" Motion upon which there may be debate but on which it is not normal to vote. As the Government were unable to accept—in other words, rejected—the conclusions of the noble and learned Lord's Select Committee, I felt it was important that the House should have an opportunity to express its opinion on this somewhat cavalier dismissal by the executive of the findings of a Select Committee of your Lordships' House. For that reason I tabled this amendment.
In my recent contacts with the Government on this matter, it has been made clear to me that they have no intention of changing their attitude. Indeed, I gained a clear impression that if I pressed the amendment the Government would not allow a free vote. If that is so, I think that it is a pity. Apart from anything else, it means that the 27 Labour Peers who voted in April for setting up the Select Committee will be deprived of the opportunity of recording their acceptance of its conclusions, if they should wish to do so. However, we shall see what happens later this evening.
It is not my intention today to rehearse any of the familiar technical arguments which surround the crash of the Chinook on the Mull of Kintyre, about which we have heard a certain amount already today. I intend to address my remarks only to the justification for the verdict of gross negligence brought against the pilots by the two air marshals reviewing the findings of the Royal Air Force Board of Inquiry. In other words, I intend to stick to the subject of the Select Committee's report.
Here I repeat something which the noble and learned Lord, Lord Jauncey, has said. I repeat it because it is crucial to the whole of this case. The Royal Air Force regulations in effect at the time of the crash required—and I quote because it is important to know the exact words:
"Only in cases in which there is absolutely no doubt whatsoever should deceased aircrew be found negligent".
I repeat, "absolutely no doubt whatsoever".
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It was with this very strict standard of proof in mind that the original Royal Air Force Board of Inquiry, under Wing Commander Pulford, came to its conclusions in the section of its report headed "Consideration of Human Failings". That is an important part of the Board of Inquiry's report. It came to these conclusions. In the case of Flight Lieutenant Tapper, it stated:
"It would be incorrect to criticise him for human failings based on the available evidence".
In the case of his colleague, Flight Lieutenant Cook, it said:
"The Board concluded that there were no human failings with respect of Fl Lt Cook".
When these clear conclusions reached the two station commanders involved—already referred to by the noble and learned Lord, Lord Jauncey—the station commander at RAF Aldergrove, commented:
"I believe that the exact train of events can never be determined with absolute certainty".
The station commander at RAF Odiham said:
"In assessing human failings, the evidence is insufficient to be specific".
In other words, the Royal Air Force Board of Inquiry and its first two reviewing officers all concluded that there was insufficient evidence to state,
"with absolutely no doubt whatsoever",
that the accident was caused by human failings, much less by gross negligence. It was only when the matter reached the two senior reviewing officers, Air Vice-Marshal Day, as he was then, and Air Marshal Wratten, that gross negligence was attributed to the pilots, without—as the noble and learned Lord has said—any additional evidence of any kind.
Air Marshal Wratten began his comments as the reviewing officer with the significant statement:
"Without irrefutable evidence which is provided by an ADR and a CVR"—
these, as we have already heard, are the accident data recorder and the cockpit voice recorder, neither of which was present in the helicopter—
"there is inevitably a degree of speculation as to the precise details of the sequence of events in the minutes and seconds immediately prior to impact".
I repeat, "a degree of speculation". Yet that degree of speculation did not prevent Air Marshal Wratten from concluding beyond any possible doubt whatsoever that the actions of the two pilots amounted to gross negligence.
Since then, as the noble and learned Lord has said, there have been a number of other conclusions reached by various authorities on this matter. First, the fatal accident inquiry in Scotland which conducted a three-week examination of the evidence under Sheriff Sir Stephen Young. That inquiry came to the following conclusion:
"It has not been established to my satisfaction, and on the balance of probabilities, that the cause of the accident was the decision by the crew of ZD576 to overfly the Mull of Kintyre at cruising speed and their selection for that purpose of an inappropriate rate of climb. It may then be asked what was the cause of the accident. For my part I can only say that I do not know".

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That was the conclusion of Sheriff Young: he did not know what the cause of the accident could be. It is worth noting that he came to that conclusion on the balance of probabilities, a much lower standard of proof than that required of the Air Marshals.
Later the Public Accounts Committee of the House of Commons examined the matter of the acceptance into service of the Chinook Mk 2 helicopter. It came to the conclusion,
"that the Chinook Mark 2 acceptance process and outcome were flawed",
and that,
"with regard to the Department's preference for their own procedures as constituting unwarrantable arrogance, we simply cannot understand why the Department continue to defend the unsustainable finding of gross negligence and recommend it should be set aside".
The Ministry of Defence ignored that recommendation, as indeed it has ignored or rejected any conclusion which differs from its own.
Next, Lord Murray, a former Lord Advocate of Scotland, examined all the evidence in great detail and came to the following conclusion. He said:
"Without impugning the integrity or sincerity of the senior Royal Air Force reviewing officers, one is constrained to conclude that they misdirected themselves in overruling the original Board of Inquiry and in holding that there was absolutely no doubt whatsoever"
about the cause of the accident. He suggested that the accusations of gross negligence were unsustainable and should be set aside. He said:
"In that event, their verdict could not stand and it should be revoked or suspended pending a reopening of the inquiry".
The inquiry was reopened when your Lordships' House set up its Select Committee.
The next examination of the evidence was conducted by three retired airline captains who are Fellows of the Royal Aeronautical Society and members of its flight operations group. Although these three gentlemen point out that their conclusions are their own and not those of the Royal Aeronautical Society as a body, they came to the following judgment:
"The history of this episode demonstrates clearly that this was certainly not a case of 'absolutely no doubt whatsoever'. A call to the Secretary of State to initiate further investigation and/or to set aside the accusations of gross negligence would go a long way to redressing a glaring injustice".
Finally, we come to the man who had the final word in accepting the Air Marshals' verdict at the time, the then Defence Secretary, Sir Malcolm Rifkind. This is what he says about it now, seven years later. He states:
"If I had been aware of the significant problems that had been experienced with the Chinook, that would have raised considerable doubt in my mind as to the wisdom of accepting the finding of gross negligence against the pilots".
So far then, we have the conclusions of the initial Royal Air Force Board of Inquiry, its two immediate reviewing officers, the civilian fatal accident inquiry, the House of Commons Public Accounts Committee, the conclusions of a former Lord Advocate and of three Fellows of the Royal Aeronautical Society all concluding that the air marshals' verdict was unsafe
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and that it certainly did not fulfil the requirement that it was based on "absolutely no doubt whatsoever". The only two people in this story who reached and insist upon the verdict of gross negligence are two senior Royal Air Force officers who, while they were almost certainly acting in good faith, had no evidence which was not available to the initial board of inquiry. Their verdict was therefore based entirely upon their own judgment. They had no evidence, as I say, that was not available to the original board. It seems to me that this judgment is just not good enough to convict two young Royal Air Force officers of the crime of gross negligence resulting in their own deaths and those of all their crew and passengers. That, indeed, was the opinion of the Select Committee of this House, whose report unanimously concluded,
"the Air Marshals were not justified in finding that negligence on the part of the pilots … caused the crash".
This is almost certainly the last chance that your Lordships will have to express an opinion on this matter. Certainly, I have no intention of bringing it back to this House. But I do not believe it right that the executive, or one of its departments of state, should he able summarily to reject the report of a Select Committee of this House on a matter of this importance. I hope that your Lordships agree with me and that you will say so loud and clear.
The Government would be wrong to think that their decision not to accept the conclusion of the Select Committee is an end of the matter. They will not he allowed to rest until this manifest injustice has been erased from the records.
That said, I insist that none of my approach to this whole affair is any form of attack on the present Government, the Ministry of Defence, the Royal Air Force or even the two air marshals at the centre of the case. As a former professional soldier, I recognise the importance of the chain of command and of service discipline. I accept that the air marshals carried out their professional duty with integrity and responsibility. I just happen to believe, like almost everyone who has examined the evidence, that on this occasion their judgment was faulty.
That was the view of the Select Committee of this House. In effect, the two pilots have already been exonerated. My own view is that the two pilots have, in fact, been totally cleared of the accusation of gross negligence, and that the Government's decision not to accept that is fatuous and irrelevant. But the fathers of the pilots insist, understandably, that the verdict should be formally set aside; and it is that which I now call upon the Government to do.
I conclude with the final words of the Select Committee report, at paragraph 176:
"How could it be that a very experienced crew, having planned to fly VFR, having taken when probably visual with the Mull the appropriate steps to alter course, when there was nothing to prevent them flying northwards within sight of the coast, flew into the Mull? It is as Sir John and Sir William speculatively described 'incomprehensible' and 'astonishing'. We shall never know".
We shall never know. Nor will anyone ever know. There was no black box on the aircraft, and the aircraft was almost completely destroyed. There were no

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survivors and no eyewitnesses. No one will ever know what was the cause of the accident—certainly not beyond any possible doubt. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "House" and to insert "accepts the report of the Select Committee on Chinook ZD576 and calls upon Her Majesty's Government to set aside the finding of gross negligence against the two pilots".—(Lord Chalfont.)
8.34 p.m.
Lord Brennan: My Lords, the Royal Air Force is the youngest of our services, but it quickly excited in all of us an admiration equal to that for the other services. The reason is clear, is it not? In peacetime or in war, air crew risk their lives in a particularly dramatic way. When things go wrong in an aeroplane, sudden death is often the outcome. Air crew, and pilots in particular, who run that risk and suffer death can surely expect two things of their country. The first is that the widow they might leave behind and their children, without a father, should not be left in need. The second is that their reputation should be protected. Those two expectations call for a system that provides a proper basis upon which to assess the presence or absence of negligence when the dead pilot cannot defend himself.
It was surely for that reason that the government of the day agreed that when such negligence might fall to be investigated, the standard of proof should be to the very high standard: "absolutely no doubt whatsoever". That is not legally complicated. It can be readily paraphrased: evidence as a result of which there is the conclusion of negligence or otherwise "completely without doubt of any kind". If that is the test, we should remember not only its nature but its objective: to do justice to dead servicemen.
That test is at the heart of this inquiry. It is not legal jargon. It is a concept of fairness and justice. It is with regard to that test that this House should consider our report and the conclusions that it chooses to draw from it.
I turn to the report. The five members of the committee all took the view that this was probably the most onerous committee task that any of us had undertaken in this House. We undertook it in a quasi-judicial manner. We examined all the evidence objectively as it existed at the time of the RAF's conclusion and as it exists now, after our further inquiry.
I stand by our unanimous conclusions. I have carefully considered the Government's response. Being a mere lawyer, and not enjoying the skills of my noble friend Lord Tombs, I am reminded of Mark Twain's response in The Adventures of Huckleberry Finn:
"The more you explain it, the more I don't understand it".
The facts were limited; the suppositions to be conceived were fragile. Our conclusion reflected that state of affairs; namely, that we were not of the view that the air marshals were justified, on the facts and
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suppositions that arose, in concluding that there was absolutely no doubt whatever about the negligence of the two pilots.
I propose to say no more about the detail of our report. This debate is surely complementary to it and not in substitution for it. What is significant to me are the concerns which arise, I hope, to fair-minded people from the investigation that we carried out—concerns of whose substance I gave prior notice to my noble friend the Minister. I shall deal with them briefly.
I understand that the investigation process within the RAF does not reflect the practice of the other two services. It was criticised in the Tench report years ago and has not been adequately reformed. It needs reform. It is a process designed to establish truth in so far as that is feasible—to protect the dead and, if necessary, to find negligence if proven. That process demands standards higher than those that I found in the RAF system.
I turn to the search for evidence. Twenty-nine people died in the Chinook crash; it was a terrible disaster. We would expect, first, that simulations would be kept within their proper intellectual limits. Based on thin facts and fragile suppositions, they cannot be any stronger in suggesting what might have happened than the material that circumscribes their value. Secondly, why was the civilian investigating arm in air crashes not fully and completely involved in a military inquiry into an RAF crash in peacetime? I can see no reason why not, but I have formed the view—which, I readily concede, may be mistaken—that the Air Accident Investigation Branch, which is expert in the field, took a subservient role in the investigation by the RAF.
I was also concerned about the range of evidence pursued in the RAF inquiry. As a layman, I could not understand why the investigating officers had not consulted expert flyers who were used to the Chinook helicopter, who had experience of it and who could give their views about what may or may not have happened. One, soldier A, gave us his views. I have the leave of my noble friend Lord Hooson, who is absent, to confirm his view, which I share, that this was a most compelling and convincing witness: a serving soldier experienced with such aircraft who was sure that negligence had not been proven. In my view, the search for evidence was inadequate.
I turn to the role of the manufacturer and supplier. The use of—in this case, the sole reliance on—the expertise of those who provided the equipment that may have been at fault is surely unacceptable. It would not be acceptable in commercial life. There, outside experts would be used. They can and should be used in this form of military inquiry. That they were not may reflect an inevitable and perfectly understandable bureaucratic process within the Ministry of Defence, which is accustomed to long-term and regular dealings with its manufacturers and suppliers. That may be give great benefits, but when 29 people die, something more is required. To argue that there is no practical alternative—as I hope will not be argued—is to demean the aeronautical expertise in this country that produced the jet and radar.

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I turn to the concept of the chain of command. That concept is essential to military efficiency. I see no basis for its involvement in a system of military justice. It is difficult to accept that, when the original board and the initial reviewing officers found no negligence under the test to be applied, the air marshals could simply reverse that conclusion—with integrity, I accept, and on their honest review of the evidence, but not having heard any of it and unable, presumably because of the weight of their duties, to give it the same degree of attention as had the board itself.
I am reminded that many military men need conclusions,—they look for them—but I remind them of Thomas Huxley's version of scientific rigour. He said:
"My business is to teach my aspirations to confirm themselves to fact, not to try and make facts harmonize with my aspirations".
That is a good lesson.
I turn to the role of the Ministry of Defence. Perhaps it was inevitable, as I fear may have been the case, that after eight years, with Minister after Minister and batteries of civil servants being sucked into the debate, some of them lost objectivity. They became so embroiled in the matter and its political ramifications that a mind set and fixed views may well have set in. Surely, if we are discussing military justice, the Ministry of Defence must deal with matters strictly at arm's length.
Why are all those considerations so important? Because our services depend on the morale of our serving men and on their sense of justice in the military arm of their services. On page 38 of the committee's evidence, soldier A, who is a senior officer, states:
"Those who have read the aircraft accident summary I would consider to feel a sense of injustice and those who have read the full Board of Inquiry most definitely a sense of outrage, and that is the feeling, as far as my perception goes, of the grass-roots level".
We Peers and generals are not today debating a technical matter; we are debating matters that affect the morale of our serving men.
Lastly, I turn to the use of a committee of this kind. I voted against it, but when I was asked to serve on it, I agreed. I voted against it for three reasons. First, I found it difficult to envisage a role for a committee of this House investigating a specific factual problem. I wondered whether that was within our compass and whether we were properly equipped to do that. Secondly, it struck me—this remains so—that it was a semi-judicial exercise. Therefore, thirdly, I was concerned that when we reported, our conclusions should not become the subject of political debate of a level that did not reflect the gravity of the matter. I fear that we may have achieved that result.
It remains my considered view that, should the House consider such a committee to be appropriate in future, it should be in only the most exceptional circumstances, in the most clearly prescribed way and on the basis that the House will treat the conclusions of that committee with the greatest respect, if it has done its work properly.
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Twenty-nine people died. Every reasonable person thinks to himself that there must be an explanation—either people were negligent or there was aircraft failure or a mixture of the two. We search for a conclusion. However, to the inquiring, objective mind, a doubting investigation and a willingness to indulge in scrutiny ensures a fair result. Such an approach may mean that, because of the state of the facts, we simply cannot say what happened. We cannot find the pilots negligent; we cannot condemn the equipment. I regard that not as a failure of the inquiring mind but as a compliment to its integrity, if the evidence is inadequate to reach a conclusion that meets the test: absolutely no doubt whatsoever.
Lord Burnham: My Lords, can the noble Lord tell your Lordships what evidence he has that the air marshals paid less attention to the matter than the original board of inquiry?
Lord Brennan: My Lords, I hoped that it was by the exercise of common sense. The RAF board or inquiry spent weeks investigating witnesses, going to the site and investigating material. I imagine that our air marshals have many serious duties to perform and could not devote the same amount of time. It is, simply, a practical conclusion, not a critical comment.
8.51 p.m.
Lord Ackner: My Lords, I have a wife whose health is such that she cannot be left alone. When I retained my carer's assistance, I had not contemplated for one moment that the debate could go on until midnight. Accordingly, I asked the noble Baroness, Lady Park of Monmouth, whether I could come in before she spoke. Generously, she agreed. I then got the concurrence of the noble Lords, Lord Bach, Lord Redesdale and Lord Chalfont, the noble and learned Lord, Lord Jauncey of Tullichettle, the noble Earl, Lord Attlee, and, of course, my Convenor, the noble and gallant Lord, Lord Craig of Radley. I mentioned the matter to the noble and learned Lord the Leader of the House, and he was content for it to be left to the House. So, I ask the House's leave to intervene at this stage. I apologise for having so incompetently overlooked the timing aspect of the debate.
Lord Bach: My Lords, the House gives leave, of course. I am sure that I speak for the House in that.
Lord Ackner: My Lords, fellow feeling makes us wondrous wise. Like the Minister and the Secretary of State, I have been obliged to argue the unarguable. The scars take time to heal, but the memory lingers on. More recently, I have had to listen to such arguments, always—I hope—conscious of the wise advice of that great judge, Lord Reid:
"Don't interrupt. You are paid to be irritated".
I adopt everything that the noble Lord. Lord Chalfont, recently stated. Had he been addressing the High Court on an application for judicial review of the Minister's decision, he would properly—and forensically, of course—have used the term "perverse"

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to describe the Minister's decision. We, of course, rarely use such harsh phraseology in your Lordships' House. However, occasionally, we call a spade a spade, and I hope that I will be forgiven if I do so.
I go back a stage before that dealt with by the noble Lord, Lord Chalfont. I propose to limit my submissions to your Lordships solely to the legality of the air marshals' decision. Although, like others, I do not, in any way, attack their integrity, I assert strongly and firmly that, whatever they may have thought, their decision was, quite simply, unlawful. I can, as I have done in the past, explain the position shortly and simply.
I shall start with matters that are common ground. First, the air marshals' authority to make a finding of guilt against the deceased pilots was extremely—I underline the word "extremely"—limited. As your Lordships have heard so often, the limitation was to be found in the RAF Flight Safety Manual AP 3207. It provided—I repeat again the vital words—that:
"only in cases where there is absolutely no doubt whatsoever should a deceased airman be found guilty of negligence".
The word "absolutely", placed in front of "doubt", emphasises that the doubt is unqualified and is unrestricted. Doubt is not limited to cases of "reasonable doubt". The word "whatsoever" after the word "doubt" means that there can be no doubt of any kind. The onus of proof that lay on the board of inquiry required certainty. That was in no way surprising, as the inquiry was in private, those acting on behalf of the deceased were not allowed representation and there was no appeal. Hence the present position that the board of inquiry is not permitted to apportion blame where the pilot is dead.
For the air marshals' verdict to be considered valid, two requirements must be met, each of them vital. The air marshals must have concluded, first, that it was a case where there was "absolutely no doubt whatsoever" and, secondly, that there was an adequate amount of material available to support such a decision. It is my contention that the air marshals fell at the first fence, the stage before that dealt with by the noble Lord, Lord Chalfont. Their decision would be ultra vires—beyond their powers—and, therefore, a nullity. It would be set aside by any court on the basis of ex debito justitiae—because justice so demands.
Nowhere in their judgments did the air marshals say expressly or imply that it was one of those rare cases where there is "absolutely no doubt whatsoever". For the nearest that they got to that, I shall quote what Air Chief Marshal Day said on 5th March, 1995. Noble Lords should see the report of the RAF board of inquiry annexed to the Select Committee's report at pages 23 and 24. He said:
"The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".
I stress the following words:
"In my judgment none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".
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What has been said, quite simply, is 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. Secondly, it deals with probabilities. It does not deal with even reasonable doubt, let alone certainties. That is the only statement in which the air marshal vouchsafes his reason for exercising his limited power. His senior officer, Sir William Wratten, adds nothing at all.
What perhaps is far more pertinent is the following statement in the air marshal's judgment.
"Therefore, while aware of the difficulty of attributing negligence to deceased air crews I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".
"Difficulty", the word used by the air marshal, is a gross understatement of the task that faced him. What faced him was near impossibility, and that is something that he did not address.
The only other part of the judgment which I think is worthy of quoting is:
"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered higher ground".
I entirely agree with him. It is incomprehensible and that merely shows that it cannot be a situation in which there is "absolutely no doubt whatsoever".
I made those submissions in the debate on the Motion for a Select Committee on 5th March 2001. I repeated them in the following month where a further attempt was made to set up the Select Committee. On neither occasion did the Minister answer my points. I, therefore, at the risk of boring the House, set them out again on 19th June 2002 on a Motion that related to the Army and Air Force and Naval Discipline Acts. Again, they were not answered. Nor were they answered by the Minister in his reply to the Select Committee on 22nd July 2002.
Literally, in the last few seconds permitted to question the Statement in this House, I asked two questions. These were, first:
"Nowhere in their judgments did the air marshals recognise the vital limitation on the lawful exercise of their power. If the Minister does not agree, perhaps he will identify where it is so stated".
The second question was that it is nowhere stated that there was,
"absolutely no doubt whatsoever that the deceased airmen—or one of them—were guilty of negligence. If the Minister does not agree, will he please identify what was the relevant statement in this regard?".—[Official Report, 22/7/02; col. 24.]
In his reply dated 30th July, the Minister, the noble Lord, Lord Bach, repeated that Sir John did not use the words "absolutely no doubt whatsoever" but claimed that his recognition of the vital limitation on the lawful exercise of his power was to be found in that very sentence which I have quoted to the House on no fewer than three occasions; namely,
"Whilst aware of the difficulty of attributing negligence to deceased air crew".

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He further prayed in aid what the air marshal had said some seven years later to the Select Committee when, of course, everybody was focusing on this very high standard of proof. In substance, the Minister, the noble Lord, Lord Bach, was forced to concede that the contemporary documents were dead against him.
While paying lip service to the obligation not to find the deceased pilot negligent unless there is "absolutely no doubt whatsoever", the Secretary of State and the noble Lord, Lord Bach, who basically repeated the former's Statement, were at pains to try to restate the obligation in terms that fitted in with the terms of the air marshal's decision. There are frequent references to plausible "explanations". In col. 15 of Lords Hansard it is there stated:
"It follows from this strict standard of proof that if there is another plausible explanation for what took place other than the one accepted by the board of inquiry, the conclusion cannot be allowed to stand".
That overlooks that the so-called plausible explanation provided by the air marshal is based not on certainty but, as previously stated, on probabilities. Further, it is reversing the onus. Moreover, it proceeds on the basis that there is no room when applying the test for the simple statement:
"We just cannot produce any explanation which involves a certainty".
At col. 16 of Lords Hansard, the entirely undefined phrase "honest doubt" is introduced. No explanation is given for that phrase. Again, at col. 16 is the phrase:
"The only realistic explanation therefore is that found by the reviewing officers of the board of inquiry".
If the obligation is to find a "realistic explanation" only, then it would be a far lower onus than the certainty required by the then regulations.
In col. 697 the Secretary of State states:
"The right way is to look objectively at known facts that can be established beyond any reasonable doubt".—[Official Report, Commons, 22/7/02; col. 697.]
Yet the Secretary of State had conceded earlier that the test he had to apply was a heavier test than reasonable doubt.
The Secretary of State and the noble Lord, Lord Bach, totally failed to recognise that the air marshal's explanation itself was highly improbable. I should like to end with a quotation from the foot of page 1 of Enclosure 1 in the review of the RAF Chinook accident dated 2nd June, concerning further work undertaken by Boeing. Boeing there states:
"It is rarely known with absolute certainty exactly what all the reasons for an aircraft accident are. One can only determine a most probable cause as many accidents in the past have amply demonstrated, even with cockpit voice and flight data recorders there is always room for doubt. Consistent with our understanding of the RAF Board of Inquiry's charter, as the investigation authority in this case, a determination of probable cause…was made based on a preponderance of evidence".
I trust the House will demonstrate its refusal to accept the undoubtedly perverse decision of the Secretary of State and the noble Lord the Minister in this House by strongly supporting the amendment tabled by my noble friend Lord Chalfont.
9.9 p.m.
Baroness Park of Monmouth: My Lords, we have a long and distinguished list of speakers and I shall be brief. I have spoken in many earlier debates on the issue in the long battle over the years. It was a tragedy in which I lost friends and a tragedy which is important in human terms both for the reputation of the men involved and for their families, for the honour and integrity of the service to which they belonged, and for other airmen in the future.
Therefore, I shall say only that I agree entirely with the Select Committee's view, reached with so much care, that the verdict of gross negligence was unjustifiable. There was doubt. I shall strongly support the noble Lord, Lord Chalfont, should lie press the matter to a vote.
9.10 p.m.
Lord Jacobs: My Lords, the RAF Board of Inquiry report into the loss of Chinook ZD576 was released eight years ago and for those eight years the contents have been strongly disputed, not least in your Lordships' House. It would be entirely understandable if some of your Lordships were beginning to experience Chinook fatigue.
I must begin by expressing my admiration for those who serve, or who have served, in the Armed Forces. They place their lives at the country's disposal and in return they ask for nothing more than that this country's safeguards, as best it can, their lives and their honour. They of course include many of your Lordships and not least the noble Lord, Lord Chalfont, who leads the pursuit of justice in this case.
We will never know with certainty the details of the last seconds of the flight of ZD576. However, when your Lordships entrusted the case to the noble and learned Lord, Lord Jauncey, and his distinguished and eminently qualified committee, the noble Lord, Lord Chalfont, and his substantial group of supporters made it clear that with the agreement of the families of the deceased pilots they were willing to accept the findings of the Select Committee. They further stated that in the event that the committee supported the findings of the original Royal Air Force Board of Inquiry, they would not pursue the matter further. The Government regrettably gave no such undertaking and have now rejected the unanimous findings of the Select Committee.
Instead, they commissioned Boeing to carry out a second simulation to try to meet some of the criticisms of the Select Committee. This second simulation actually disproved much of the first simulation on which the reviewing officers' verdict so heavily relied. Your Lordships may wonder why the Government did not promptly and graciously concede the case. I will return to that later.
In the past three years, I have spoken in several Chinook debates and never once have I failed to mention that it is certainly possible that the two pilots, Flight Lieutenant Tapper and Flight Lieutenant Cook, were guilty of gross negligence. However, the RAF regulations permit the reviewing officers such a

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finding only in cases where there is "absolutely no doubt whatsoever". That means no doubt about the objective evidence, not no doubt about the reviewing officers' minds about their own subjective opinion. This standard of proof is higher than that in a criminal court. It equates to absolute certainty of the facts. Obviously, if there is any other reasonable alternative explanation, the standard of proof for negligence is not met.
To understand the difficulty of establishing the cause of the accident, perhaps I may remind your Lordships of a case which occurred just two years after the Mull crash. A similar Mk2 Chinook was flying in the United States when in mid air it turned upside down and hurtled towards the ground. The crew wrestled with the controls to try to save the helicopter. Just 200 feet above the ground, the Chinook miraculously righted itself and the helicopter landed safely. The crew were euphoric, as indeed they might have been having just escaped certain death.
The US Army and Boeing had a totally intact helicopter to which they applied all their massive resources. They analysed it piece by piece to try and find the cause of the near-fatal accident. Their conclusions were that they could not establish the cause but they suspected the possibility of contamination in the hydraulic system.
The wreckage on the Mull revealed that the hydraulics system contained slivers of metal and other debris. This may or may not have been the cause of the accident, but it is a valid explanation which cannot be positively eliminated and which, therefore, disallows the certainty which is mandatory for a gross negligence verdict.
The Mk2 Chinook helicopter was put into service only two weeks before the fatal flight. At that time both pilots expressed to their families their deep concern about having to fly the Mk2 Chinook on operations in Northern Ireland when it had not been fully tested and certified. Indeed, Boscombe Down was unable to complete the testing of the FADEC electronic engine control system. The possibility of a transient FADEC failure is consistent with known FADEC problems and with the known facts of the accident. It is yet another valid explanation which cannot be discounted or eliminated.
Engine failure warning signals appeared, lasting on average seven or eight seconds. Group Captain Crawford, then station commander at RAF Odiham, wrote:
"at the time of the accident the cause of this was not understood and such spurious signals would have caused the crew considerable concern, particularly if they were over water with no obvious areas for an emergency landing. Such a warning would have also required an urgent and very careful check of the engines, instruments and the incomplete Flight Reference Cards".
The MoD has always maintained that if others could come up with new evidence it would re-examine the matter, even though there was already a great deal of evidence for several alternative explanations. Your Lordships will have noted that I use the word "explanations", whereas I refer to the reviewing
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officers' verdict as a "hypothesis". You may agree that a hypothesis is a proposition, the truth of which has not been proved but which is used as a starting point for an inquiry. The examples of other possibilities, such as contamination of hydraulics and FADEC malfunction, are founded upon known facts and I have therefore used the word "explanation".
On what is the AOC's verdict founded? Not evidence in the wreckage; not witness testimony; certainly not in the pilots' distinguished flying records. It is founded on a need to explain the cause of the accident. It hardly deserves to be called a hypothesis. It is the AOC's guess—and it is a bad guess. What is more, the MoD insists that this verdict can be overturned only by the absolute proof of another explanation.
I have demonstrated that there are several alternative explanations, but now I want to deal with the reviewing officers' hypothesis. It was based upon the first simulation carried out by Boeing. Their theory was that the aircraft was not in the correct position just before it reached the Mull and inadvertently went into cloud when it was operating under visual flight rules. This simulation derived data primarily from the physical evidence of the crash and from the Racal Decca TANS navigation system. From these they were able to determine approximately the height of the helicopter and also the speed. The height was 468 feet and from the start of the final manoeuvre the minimum speed was 150 knots. Also, they determined the approximate position of the helicopter. Unfortunately, the helicopter data used for the first simulation were not the Mk2 model and were criticised by the Select Committee.
So the MoD decided to ask Boeing to carry out a second simulation. What did it find? First, the height calculation could have been in error by 200 feet. Secondly, the most likely speed of the helicopter was 135 knots, not 150 knots. Thirdly, the first simulation indicated that the engines were at mid-power, but the second simulation indicated that the engines were at maximum or even emergency power. Fourthly, Boeing also admitted that the simulated climb angle at which the helicopter was supposed to be flying in the last instant before the crash is not consistent with the evidence from the wreckage. Fifthly, Boeing drew attention to the highly unusual position of the left rudder pedal, on which experienced helicopter pilots had already commented. It was not mentioned in the first simulation. Sixthly, perhaps most surprising of all, Boeing was unable to explain a slight turn to the right when the pilots had planned a 12 degree to 15 degree turn to the left when they made their waypoint change.
I am well aware that the Boeing management conclusions on the second simulation do not tie in with those facts. I leave your Lordships to speculate why. Your Lordships will recall that in their appearance before the Select Committee the reviewing officers based the defence of their verdict on the evidence of Boeing's first simulation. Given that Boeing has now exposed the flaws in that simulation, there are

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excellent grounds for the Government to set aside the verdict without in any way impugning the integrity of the reviewing officers.
As far as the TANS equipment is concerned, this was an essential piece of equipment used by the board to reconstruct the flight path of the helicopter, yet the manufacturers state that the equipment is not designed to provide historic data, but such data may indicate—not prove—the situation at a time earlier in the flight.
As the TANS computer played such an important part in the reconstruction, I must mention an incident that occurred on 13th July 1995, when a Chinook Mk2 helicopter was tasked to perform an over-flight of Flight Lieutenant Jonathan Tapper's memorial. The RNS 252 SuperTANS displayed an error of just 210 feet. yet the crew who were in visual contact with the ground, could see that the TANS was more than two nautical miles in error.
The TANS system believed that it was some 12,000 feet away from its actual position. If that Chinook had crashed and, the air marshals had used the retrieved data as facts to reconstruct the final flight path, their interpretation of events up to the crash would have been displaced from reality by some two nautical miles. If such inaccuracies can occur in this equipment, is it not clear that it cannot be used to establish undisputed facts with "absolutely no doubt whatsoever"?
I turn to the final matter I should like your Lordships to consider. From my first introduction to the subject have been puzzled why the reviewing officers were able to conclude with certainty amid such contradictory evidence that there was "absolutely no doubt whatsoever" as to the cause of the accident. We must remember that the reviewing officers were the judge and jury of the case; that the defendants were deceased and had no legal representation; and that there was no right of appeal. Under that so-called system of justice the pilots were effectively found guilty of manslaughter.
I take your Lordships back to early February 1995, just before the report was considered by the reviewing officers. An edict was issued from on high, which I shall paraphrase as saying that in too many accidents in recent times, pilots who may have been negligent have been allowed to get away with it and it must stop. Here I quote from the edict itself:
"I wish to put this policy into practical effect by ensuring that formal disciplinary action is taken whenever, following Board of Inquiry Investigations, clear evidence emerges of unmitigated indiscipline or negligence. The increasing incidence of such cases suggests that past practice, which has been to shun the disciplinary approach (even in some quite serious cases) is no longer appropriate to the high standards the Royal Air Force is entitled to expect from its aircrew".
Such a strong edict might have influenced, and been intended to influence, those officers reviewing the conclusions of the board of inquiry, which took place in February and March 1995. The edict is indicative of a mindset. It indicates that the command was predisposed to a disciplinary approach to flight safety. The RAF calls this, "flight safety by intimidation". However, such an edict could properly form part of a
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system of approach to flight safety which reviewed every aspect of flight operations, but such a review was never ordered. The author of that devastating, edict was none other than one of the judges in the case, the reviewing officer Air Marshal Sir William Wratten.
I started by declaring that our servicemen who placed their lives in our hands trust us to afford them the highest standards of justice and to honour the memory of those who die in our service. Let us not fail the pilots of Chinook ZD576.
9.23 p.m.
Lord Craig of Radley: My Lords, I welcome and support the Government's response, which counters effectively and convincingly the Select Committee's main points. That is not to say that the committee—and I have great respect for all its members—has not tried hard to comprehend these complex issues. I propose to confine my remarks to some additional points where the committee's approach appears mistaken.
First, it did not follow all the statutory rules and guidance that govern boards of inquiry. Given that, it is perhaps hardly surprising that the committee did not agree with the findings of the reviewing officers who were, of course, bound by those rules. The committee, and others who have not agreed with the air marshals, judged the board's findings by comparison with civil and criminal courts standards of proof.
But a board of inquiry is not a court of law. Members are appointed for their aviation expertise related to the accident, not as lawyers or legal experts. Their duties, the responsibilities of a board, are nevertheless set in statute in Section 135 of the Air Force Act 1955 and the Board of Inquiry (Air Force) Rules. I should like to draw your Lordships' attention to just one of several key stipulations in these statutory rules. On evidence, it states:
"A board may receive any evidence which they consider relevant to the matter referred to the board, whether oral or written, and whether or not it would be admissible in a civil court".
To judge the findings of the board against those used in a court of law is as wrong as, say, applying the rules of rugby to decide if a foul was committed in a football match. The findings must be judged by the statutory rules for a board, and using all the detailed explanation and guidance to boards that are given in MoD Publication AP3207. I was taken aback by the Select Committee's departure from this approach.
The statement that,
"only when there is no doubt whatsoever should deceased air crew be found negligent",
was never drafted to be compared with wordings applicable in the courts. The context of the statement was to describe a test which, while very high, had still to be capable of a practical application. Instead, the Select Committee introduced its own yardstick—
"it requires all other plausible explanations for the crash to have been positively excluded",
from which to derive its own opinion. In the context of a fatal aircraft accident, this test is highly unlikely to be ever achievable. The Select Committee moved the goal posts.

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A finding of human failure in a board of inquiry against a pilot or crew who survived an accident is not the basis for any charge under the Air Force Act. The next stage would be to call for a summary of evidence, and such evidence is taken according to the rules of evidence in court proceedings. Based on that evidence, and not on the board of inquiry, a decision whether to prosecute would be made. So courts martial and summary punishment processes are dealt with separately from a board of inquiry. No finding of manslaughter arises from the Chinook board, as some have claimed.
I was surprised that the committee criticised the appointment of Wing Commander Pulford as board president because he had not previously conducted a board of inquiry. But the Royal Air Force has had few major accidents in recent years. Only one affected the Chinook fleet, and that took place over five years before the Mull accident. Previous board experience of inquiries into fatal accidents is thus extremely limited. Of far greater importance in an inquiry is current knowledge of the operation of the aircraft type in question. On those grounds, Wing Commander Pulford was very highly qualified—one of the most experienced helicopter pilots of his rank in the Royal Air Force. Expert advice was constantly available to him from flight safety and technical staff throughout the inquiry. I believe that the committee's criticism of his selection is both unfair and unwarranted.
The committee questioned, as others have done, the validity of relying on the Boeing work to help to deduce what had been happening in the remaining seconds before the crash. But as Boeing itself states, its work was an analysis tool and should not be considered defective, as the Select Committee thinks. The board was justified in considering that work to help to reach its conclusions.
The air marshals' findings relate to the airmanship displayed on this tragic flight, and the account that the crew took of the forecast and actual weather over and in the vicinity of the Mull. The Select Committee accepted that Mr Holbrook, the yachtsman, was a reliable and convincing witness. What it should have appreciated from his witness statement, and from other witness statements, was that the cloud cover—its base and extent—and forward visibility were in a state of flux. A strong wind of 25 knots would contribute to frequent, possibly rapid, changes in cloud base and local visibility. That was the forecast; it was not unexpected.
The Select Committee seems to have presumed that the crew faced relatively static weather conditions. But, given the forecast, witnesses' descriptions of the conditions at the time of the accident and the strong tail wind, the crew would have had little or no time to make a safe transition from visual flight rules to instrument flight rules if the need to do so proved suddenly to be unavoidable. I do not consider that the Select Committee has alighted on new weather evidence. The evidence available to the board, and its experience, merely support the additional comments of Mr Holbrook.
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The Select Committee refers to the problem of a distraction, and considers that the crew could have faced a technical problem, for which there is no evidence. If the crew found themselves in Instrument Met Conditions, which they had been warned to expect near the Mull, in continuing to fly below the safety altitude, they failed in their duty of care by not adhering to instrument flight rules in good time. It is no defence to opine that they could have been distracted, or worse, by a technical malfunction. If they had been at, or above, safety altitude, their attention could have been fully devoted to dealing with the problem without any risk of flying into the mountain.
Peacetime flying requires full and unambiguous adherence to this all-important flight safety rule. Even a minor deviation is a serious breach and unprofessional in qualified aviators. The Select Committee also said that if the crew were to be deemed negligent, they,
"ought to have foreseen that their action would in all probability occasion the final event".
The MoD rightly responds that this is an unrealistic and inappropriately narrow approach to the question of negligence. The guidance in AP 3207 as a whole must be considered. The quoted words are from one of two questions in the AP that a board must first ask itself in order to distinguish between irregularities that had no direct connection with the cause of the accident and those that had. The crew would know that flight below safety altitude would be dangerous. So it would be right to conclude that human failings must be considered. That was the point of this question. Negligence is defined for the board in AP 3207 as,
"The omission to do something which in the circumstances a reasonable person would do; or the doing of something which in the circumstances a reasonable person would not do or do differently".
The Select Committee does not appear to have applied this test; it used its own.
Good airmanship is a combination of sound judgment and the proper taking of care. The two pilots certainly had the necessary skill and knowledge to maintain safe flight. With passengers on board, their duty to take care was explicit. But, the fact that, by waypoint change, and faced with marginal weather at the Mull, they had not adequately slowed down, turned away or climbed to a safe altitude, regrettably confirms an act of negligence on this particular mission.
I agree with the MoD's reactions to the Select Committee's report, while once again expressing my sincere and profound sympathy to the families of both pilots and all the other victims of this appalling disaster. I hope that, on reflection, and having listened to the debate, the noble Lord, Lord Chalfont, will withdraw his amendment, which can do nothing to undo the correct decisions about negligence. I hope, too, that those who criticised the two air marshals in the past will now agree that they discharged their statutory duty and stood by their decisions, in spite of

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much pressure over a prolonged period, with moral courage and integrity. That does credit to them and to my service
Lord Jacobs: My Lords, before the noble and gallant Lord sits down, why is a finding of gross negligence which resulted in the death of 29 people not equivalent to a finding of manslaughter?
Lord Craig of Radley: My Lords, because this is a board of inquiry, not a court of law. Only in a court of law can there be a charge and a finding of manslaughter.
9.35 p.m.
Lord Gilbert: My Lords, it verges on impertinence for me to say that I agree with every word that has just been said by the noble and gallant Lord, Lord Craig. It was my sad duty five years ago to make my first remarks in your Lordships' House on the subject of Chinook. It happened to be the first matter that came across my desk when I returned to the Ministry of Defence in 1997. I was therefore interested in the remarks of the noble Lord, Lord Brennan, about Ministers getting sucked into these matters and, from time to time, being faced with inbred ministerial and departmental attitudes and being affected by political considerations. I resent those remarks. I am sure that none of my Conservative predecessors as Ministers was affected by any of those considerations and I am sure that none of my successors who have spoken from the Dispatch Box under this administration has been affected by considerations of that sort. Had I been so affected, it would have been an ideal opportunity for me to demonstrate that I could dissent from my Conservative predecessors. I found myself unable to do so.
With regret, I find it impossible to acquit the two pilots of negligence in this case. I do not wish to go over again any of the things that I have said before in your Lordships' House. There is one point that I ought to make in response to the layman's argument brought up vividly by the noble Lord, Lord Chalfont, at the end of his remarks. I congratulate the noble Lord on his persistence and courage in bringing this matter once again to your Lordships' attention. I think he was quoting from the last paragraph of the Select Committee report when he asked how one could conceive of two such skilled, able and experienced pilots making such an error. I am afraid it is very easy to conceive of able, experienced people making mistakes. It happens in the air every day. Pilots well know that from time to time, there but for the grace of God go they. Luckily, they make their mistakes in non-life-threatening circumstances.
I realise that I speculate. I am not offering this as a solution to what may have happened in the air, but when there are two pilots on a flight deck it is by no means unknown for confusion to arise suddenly as to who is in control. It may take a little time for that to be sorted out. We are led to believe that there might have been an emergency of some sort on the flight deck. I do not say that that is a normal occurrence, but it is
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certainly not unprecedented on a flight deck with experienced people. It happens on civilian airliners as well. I regret that I have no option but to reaffirm the conclusion that I first came to as a Minister when considering the case.
The Earl of Onslow: My Lords, the noble Lord has been saying that certain things are possible or probable. The argument is not about possibility or probability. The noble and learned Lord, Lord Ackner, talked about the need for absolute proof with no doubt whatsoever. The moment the Minister — sorry, the recently retired Minister—says that the cause could possibly be this or that, he concedes the whole case.
Lord Gilbert: My Lords, I do nothing whatsoever. I have made it absolutely clear that I regard it as inconceivable that there was any other cause. Various kinds of negligence could have been involved in the case that we are discussing. As I was about to say, I think that the Royal Air Force's language is unfortunate. I do not like the term "gross negligence". I think that "negligence" is quite enough without rubbing salt into people's wounds. I believe that the Royal Air Force has probably set itself too high a hurdle with respect to these matters. However, having said that, I repeat that I have absolutely no doubt whatever that the Government are right to reject the Select Committee's report.
9.40 p.m.
Lord Burnham: My Lords, the primary Motion before your Lordships' House is that your Lordships take note of the Select Committee report. That is a serious enough Motion to consider but I find it absolutely extraordinary that we should have an amendment to such a Motion. I believe I am right in saying that that has not occurred for 24 years. Twenty-four years ago the issue concerned a constitutional matter and the amendment was moved by a member of the Select Committee itself. Therefore, I hope that the noble Lord, Lord Chalfont, will withdraw his amendment at the end of the debate.
The Chinook crash is gathering the mythology associated with the "Birkenhead", the "Titanic" or the "Lusitania". That myth must be arrested and the basic known facts considered. We are looking for the facts—facts that can support the verdict that there was no doubt of the pilots' negligence. Sadly, there are no such doubts, however unlikely—as has been said on a number of occasions—it may seem that two such experienced and responsible pilots should have got themselves into such a position. What happened to other aircraft at other times and in other conditions is irrelevant.
What happened in particular in the case that led to the Ministry of Defence suing Textron Lycoming in 1989, or in the RAF board of inquiry in March 1994, is quite a different matter. The FADEC system in the Boscombe Down incident has nothing to do with the matter when seen against the facts of the flight of ZD576 on that day.

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Noble Lords who know the conditions around the Mull of Kintyre from flying or sailing round it know how treacherous and variable they are. Chinook ZD576 was seen by a yachtsman at approximately 300 feet approaching the Mull in clear visibility. What happened thereafter with regard to the visibility is a matter of doubt and it is not clear whether or not the crew had seen the Mull. But they did fly towards the land without deviating from their track.
If the aircraft had "pulled to the bells"; that is, exercised maximum power, on entering cloud 30 seconds before the eventual impact, it would probably have avoided hitting the Mull, whose maximum height is 1,463 feet. Here flight rules are quite clear. On moving from a state where visual flight rules apply—which is where the aircraft was seen by Mr Holbrook—into cloud where instrument flight rules apply, the pilot has two alternatives. He has to climb to the designated safety altitude, which is a height 1,000 feet above any obstacle within five miles of the track. Alternatively, he should turn through 180 degrees and get out of it. That is what should have happened in the conditions of cloud off the Mull, which is, as I say, a notably treacherous place.
The first alternative—that is, to climb to safety altitude—may not have been possible because of restrictions on the use of the anti-icing equipment. Ice can build up on the engine intake surfaces. Before going into potentially icing cloud, the electrically heated rubber mats on the intake blankets should be switched on. It is understood that there was a flight restriction stating that the anti-icing should not be switched on except under operational conditions.
Although the crash took place in June, it is at least possible that there was icing in the cloud. If there was any doubt, the pilot should have turned through 180 degrees and followed his previous track in reverse. The trouble was that they had an ETA to meet and restrictions on their flying hours. The pilots elected to carry on in the belief that they knew where they were.
As we know, there were two pilots. The duty of one is always to fly the aircraft while the other provides lookout and assists with cockpit management. In cloud, everything goes dark and the pilot must look up to find where the top of the cloud is. When the aircraft nears the ground, the cloud turns green. All the indications are that that is what happened. The aircraft increased height from an estimated 468 feet 18 seconds before impact to 810 feet at the point of impact; that is, the rate of climb was 1,140 feet per minute, which represents a steep but not a maximum rate of climb. The aircraft did not at any stage turn.
The whole point is that the pilots should never have got themselves into cloud in the first place. Once they were there, they should have turned or climbed instantly. It is unlikely that they were turning into icing cloud.
In mitigation, it has to be said that the pilots might have been distracted; but that is not an excuse, particularly with two such experienced pilots, together with their crew. There is no reasonable doubt—
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possibly a stronger phrase could be used—that they were grossly negligent, however inconceivable such a verdict may be. They were in a hurry and decided to cut a corner, both vertically and horizontally.
JSP (or joint service publication)318, the manual of flying, clearly defines safety altitude and states unambiguously what a pilot must do when he inadvertently enters cloud. He must climb above safety altitude or turn through 180 degrees. The pilots ignored all of that.
It is true that there are a number of questions to be answered. The pilots were navigating by the relatively primitive TANS—tactical air navigation system—which did not at that time have a GPS input. Certainly, the Chinook had no effective radar. which would have enabled the pilots to see their position relative to the Mull. The lighthouse itself was a waypoint, and they must have wanted to overfly it to check their navigation. However, it was—or is presumed to have been—in cloud and they presumably did not see it. I have no knowledge of the quality of their "met" briefing at Aldergrove, which might have defined the extent of the cloud cover.
None of that is any excuse for the pilots' actions. I do not believe that it is quite clear where they were going. Why was their course after the waypoint at the lighthouse considerably to starboard of the track for the next waypoint at Corran? It is not clear why they found it necessary to cut those corners, but there is no doubt that they did. For that reason, the verdict of the air marshals should stand and all the other considerations, although interesting in the context of the Chinook Mk2 in general, have no relevance to the accident. In any case, the argument in favour of the verdict of the air marshals is overwhelming.
Noble Lords are being asked to "take note" of the Select Committee report. I hope that noble Lords will firmly oppose the amendment of the noble Lord, Lord Chalfont, should he choose to press it to a vote, which I hope he will not.
9.49 p.m.
Lord Mackie of Benshie: My Lords, I suppose that I should declare an interest in that 60 years ago or thereabouts I spent six years in the Royal Air Force and have had an abiding affection for that service ever since.
Of course, I have read our Select Committee's report. I was struck by the fact that the members of the committee spent a great deal of time trying to find obscure faults which could be to blame for the accident. I believe that they were perhaps motivated by the introduction of the noble Lord, Lord Chalfont, and that they were there to protect the pilots' reputations. Some of the evidence was most interesting. Witness A from the Special Forces branch and Squadron Leader Burke were both totally puzzled. They knew about these wonderful, complex aircraft. They could not understand it and went into detail about how such an accident might have occurred.

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After reading all the evidence, I asked myself how two experienced pilots—a whole crew who are very dependent on each other with a complex method of control—came to fly into a hill. The explanation given by the noble and gallant Lord, Lord Craig, appears to me to be correct. They failed to take action when they should have done and they thought that their rate of climb would clear the Mull straight ahead. It was a bad and fatal decision. They had flown for 20 minutes without trouble. They could have turned and gone round the coast but they chose to go over the Mull. As I said previously, they made a fatal mistake.
Experienced crews do make fatal mistakes. I remember that that was driven home to me in war time by a story, which I shall tell your Lordships, about a Russian woman—a great sniper who had killed 150 Germans. In 1942 she came over on a tour of Britain. An experienced squadron leader—a regular officer who had done a tour of operations—took up a Stirling bomber and "shot up the aerodrome", as we called it, to demonstrate. He made the simple, fatal mistake of flying too low. He crashed the aircraft and killed all the crew. The Russian sniper lady burst into tears and had to be taken away because she was so distressed.
That happened a long time ago but it has happened time and again. Experienced crews can make mistakes. Therefore, I conclude, with regret of course, that the verdict of the air marshals is correct.
9.53 p.m.
Lord Guthrie of Craigiebank: My Lords, all of us recognise just how sad and tragic this case is. But I do not feel that it is anything like as complex as some have portrayed it to be. The noble and gallant Lords, Lord Bramall and Lord Inge, who unfortunately cannot be with us this evening in your Lordships' House, have asked me to say that they agree, and want to be associated with, what I am about to say.
Early in their response to your Lordships' Select Committee report into this sad and tragic accident, the Government reiterated the statement made repeatedly and consistently by the two air marshals—the officers whose duty it was to review the board of inquiry proceedings. It is that negligence had occurred by the time that the pilots made the waypoint change. If they were in cloud, flight should have been in accordance with instrument flight rules: that is that they should have been at their safety altitude of 2,400 feet. Of course, they were well below that. If they were not in cloud, they had flouted the basic rules of airmanship by flying too fast and too close towards the cloud-covered high ground of the Mull of Kintyre. By definition, if they were flying in such visual conditions, they would have seen what they were doing; they would have known they were mere seconds from the Mull of Kintyre and that by continuing to approach it in that way, they had unnecessarily placed themselves in increasing jeopardy.
In short, the pilots pressed on into the bad weather that they had been warned to expect in the vicinity of rapidly rising, cloud-covered high ground. I believe that it is as simple as that. It is most unfortunate that
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many, including with respect, the members of your Lordships' Select Committee, have lost sight of that central issue.
In the judgment of the reviewing officers, by flying their aircraft in such a manner, the pilots ignored their pre-eminent duty. They had failed to take care. They had failed to do everything in their power to ensure the safety of their aircraft, passengers and crew. Such a failing in the demanding and unforgiving realm of aviation unquestionably constitutes negligence. Again, in the judgment of the two exceptionally experienced reviewing officers, both of whom I know personally, and whose judgment I have never doubted, that was indeed gross negligence.
Moreover, the evidence rendered such a finding undeniable. There is no evidence to suppose that the pilots were not in control of their aircraft. They possessed the skill and knowledge to adhere to the basic rules of airmanship, but they did not do so. The negligence finding is therefore founded on the fact that they failed to take timely avoiding action on approaching deteriorating weather around the Mull of Kintyre, which they had been warned to expect.
Those who have chosen to reach different conclusions have mounted no convincing argument against this analysis, an analysis repeatedly explained by the reviewing officers. Rather, they have insisted on focusing on any number of what I might call peripheral matters: in particular, the few seconds following waypoint change and immediately before impact—20 seconds or so. That is irrelevant in the context of a negligence finding.
Moreover, the hypothetical emergencies that they claim might have arisen during those fleeting moments are implausible when tested against the known facts. In consequence, critics appear to have continuously changed tack. These peripheral matters have included a suggested failure of engine control system, jamming of the flight controls, contamination of hydraulic fluid, computer malfunctions and even a rushed and improper introduction into service of the Chinook Mk2 fleet in general. There is no convincing evidence to support any of those, as the Government's precise response details.
It is sad that some critics of the finding of negligence—I am certainly not referring to your Lordships' Select Committee—have even stooped to attack the motives of the reviewing officers, suggesting a lack of judgment and even a cover-up behind the loss of their aircraft and 29 lives. A cover-up is a particularly shaming suggestion and discredits only those who make it.
The air marshals determined in the direct pursuit of their duty that it was not permissible to avoid a finding of negligence by recourse to a hypothesis for which there was no evidence and which was revealed as wholly implausible when tested against the known facts. In this determination three successive chiefs of air staff—the heads of the Royal Air Force—endorsed their judgment.

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This is the honest opinion of experts. Those who admit to being laymen in aviation matters should, I feel, accept it as the right judgment. They might also acknowledge the anguish of the two air marshals who reviewed the case in having to reach the conclusions they did. Their sadness is overshadowed only by the bereavement of the families of those who lost their lives in this disaster.
I am a relative newcomer to your Lordships' House and perhaps more innocent than some of the hardened parliamentarians sitting here. But I should be surprised, and think it unfortunate, if an element of party politics has to come into a case such as this.
The fate of Chinook Zulu Delta 576 is a tragedy for many people. The finding is certainly not, as has been suggested, a manifest injustice. The time has come for this to be recognised. I believe that your Lordships' House should take note of the committee's report.
10.1 p.m.
Lord Hardy of Wath: My Lords, I voted in favour of the referral of this matter to the Select Committee. I did so because, while I considered that the cause of the crash was the aeroplane being flown at far too low an altitude, there were so many suggestions, hypotheses and different arguments being advanced that I thought it would be appropriate for your Lordships to consider the matter and perhaps to conclude it satisfactorily.
However, I now regret that I voted for the issue to be referred to the Select Committee. I regret it because while I pay tribute to the members of the Select Committee for their devotion to effort and for their immersion in detail, I still believe that the cause of the crash was low altitude and not any of the other suggestions that have proliferated. I received one suggestion the other day; that there may have been a margin of error of 150 feet in the assessment of height. Even if there had been, the aircraft would still have crashed. The lives would still have been lost.
Bearing in mind the fundamental reality of the aircraft being flown too low, the reviewing officers, who are experienced and honourable men—and I have met them—were entirely justified in reaching their decision.
One considers the weather. Bearing in mind the information about the weather and the risk of cloud that was given to the pilots before they embarked on their journey, they should have been aware of the conditions that they were likely to encounter en route. Clearly, the aircraft should not have been flown so low. My noble friend Lord Fitt reminded us of this in a previous exchange on the subject. He lives 11 or 12 miles from the Mull in the north of Ireland. He often looks out at the Mull and can see the weather changing dramatically within a 10-minute period. My noble friend agrees with the point that I have just made.
The pilots will have served in conditions that would have led them to understand the nature of the terrain and of the kind of climatic changes that they could experience. Yet they still flew too low.
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None of the other possible arguments holds water. The fact is that that the aircraft was being flown too low and perhaps too fast. The skill of the pilots is not in doubt; their judgment is. Their skill was revealed by their last-minute attempts to escape from the land that they were rapidly approaching. They did not have the space to move out of danger. But that does not mean that the reviewing officers should have done anything other than their duty. Their duty directed them to make a decision that there was negligence. They have been criticised for being austere.
Perhaps I should declare an interest. I am heavily involved in the Air Training Corps. We have sent quite a few young people from my squadron into training in the past two years. I do not know what they think of the squadron, but I know what I think and what their parents think—happily seeing their young people entering a fine career. They want the senior officers in the Air Force to set a priority. If it requires them to be austere, then so be it.
We must bear in mind that people like the noble and gallant Lord, Lord Craig, like Sir William Wratten and the then Chief of the Air Staff, Sir Michael Gray, did most of their flying during the Cold War, when the Air Force had to involve itself in intensive and demanding training. They saw their friends die, and they do not wish to see people die unnecessarily. That is why, today, the Air Force spends enormous sums of money and devotes greater care to safety. It is not just a question of saving lives. The aircraft flown by Members of this House during the Second World War—the Spitfire, for example—cost about £13,000. Today's aircraft cost more than that figure in millions. Obviously, senior Air Force officers must try to ensure that the culture of safety is properly observed.
That does not mean that we should start casting stones at the two pilots. It does not mean that we cannot share or sense some of the grief that their families, friends and colleagues will have felt; as will the families, friends and colleagues of the distinguished public servants who died as passengers in the crash. At the same time, it does not mean that we should seek to disagree with the responsible decision of Air Chief Marshal Sir William Wratten and Air Chief Marshal Sir John Day that there was negligence. That verdict was justified, and so was the Government's decision clearly to endorse it.
10.7 p.m.
Lord Bowness: My Lords, the findings of the Select Committee, of which I was a member, have been fully set out by our chairman, the noble and learned Lord, Lord Jauncey. I thank him for the way in which he led the Select Committee in what was not an easy task. I also add my thanks to our colleague, the noble Lord, Lord Tombs. He brought his considerable technical expertise to bear on the problem and made it much easier for those of us who are not of a technical turn of mind to understand what had happened.
I rather wish that the last words from the Select Committee had been those of the noble Lord, Lord Brennan, who summed up the critical issues. There is

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not a great deal more to say. However, I say to the noble and gallant Lord, Lord Guthrie, that there was no question of party politics entering the considerations of the Select Committee. I am sure that that view will be shared by my colleagues from the Select Committee, whether party members or non-party members.
The Select Committee kept strictly to the remit that it was given by this House; namely, to examine the justification for the findings. I say to the noble Lord, Lord Mackie of Benshie, that we did not set out to find an alternative cause of the accident. I do not think that that is possible. The committee's findings were unanimous.
Perhaps I may take up the point raised by the noble Lord, Lord Brennan, about the quality of the inquiry and the process. I do so not because it was our remit to comment on that, but because it goes to the root of why—or, at least, it is one of the reasons—the Select Committee was able to state unanimously that in its view the finding was not justified.
I draw your Lordships' attention to a few examples. A paragraph on page 9 of the board of inquiry's report states that the board had:
"reviewed the technical malfunctions and air incidents which had occurred with the Chinook HC2 in RAF service and considered whether they could have played a part in the accident".
The report states that the Chinook had experienced a number of unforeseen malfunctions. I shall not take up your Lordships' time by citing them all, but it is relevant to consider the evidence of Squadron Leader Morgan, who gave evidence to the board of inquiry. The witness statements are not contained within the published evidence but are in the public domain because they were put to witnesses at our inquiry. He was asked by the board what unforeseen malfunctions have occurred on the Chinook HC2 since its introduction to service. He answered:
"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 indications".
He was asked whether the malfunctions were covered by drills in the Chinook flight reference cards. He replied that, no, the Chinook HC2 FRCs,
"were based primarily on the Chinook D model which is not fitted with FADEC…Drills relating to FADEC … were based on the best information available on how the system would respond during certain malfunctions".
The third and final question put to Squadron Leader Morgan was: were there any areas where the Chinook HC2 FRCs valid on 2nd June 1994 were confusing? He said that a number of emergency drills, in particular electrical and hydraulic, were poorly laid out and required the crew to be familiar with the drill to avoid confusion. He said that the shortfall in the Chinook HC2 FRC was discussed with crews during their conversion courses.
I do not put forward those considerations as a reason for the accident. However, it is reasonable to ask, as did the Select Committee, whether further inquiries were made on those issues. It appears that they were not.
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Further questioning of the squadron leader confirmed that the board of inquiry held not only formal interviews, of which the evidence that I have cited formed part, but informal interviews. Witnesses have said that the boards in effect decide what line they want to follow before they take the formal evidence, and then take only the formal evidence that suits them. I would cite all of the evidence, but it is too late at night to do so, so suffice it to say that it is to be found under question 540 on page 6, relating to Squadron Leader Morgan's evidence.
We also heard evidence from witness A, who would have been available, had the board of inquiry chosen to call him. He gave evidence to the fatal accident inquiry. Talking about the problems of the Chinook, he said:
"They occupied our minds to a great degree, crew room talk was of little else at the time. The crews felt extremely uneasy about the way the aircraft had been introduced into service. This perception was reinforced by a lack of information contained in the aircrew manual, the poor state of repair of the flight reference cards and such like as well".
Again, that is surely something that, had the witness been called and the question asked, would have prompted further inquiries.
The Select Committee has implicitly been criticised for its conclusions about the weather. How much trouble did the board of inquiry go to find out about that critical matter?
Mr Holbrook, who had a brief interview in the first place, gave evidence to Strathclyde Police that there were trawlers, or a trawler, with a St Andrew's cross on the superstructure. When we asked whether anybody had tried to find the fishermen around at the time who could have given evidence about the weather, we were told that inquiries were made by the RUC in Northern Ireland. It seems somewhat unlikely, given that the Scottish saltire was being flown, that that was the most appropriate place in which to make those inquiries.
The noble Lord, Lord Brennan, referred to the role of the Air Accident Investigation Branch. Its findings have been put forward in support of the air marshals' findings, as were the Boeing simulations. However, it is important that we note the evidence of Mr Smart at question 149 in the published evidence. I quote part of what he said:
"The role of the AAIB Inspector in the Board of Inquiry is to advise the President and members of the Board with those aspects that the members of the Board of Inquiry determine are areas they wish the Inspectors to consider. The Board of Inquiry consider the scope and direction of the investigation".
He went on to say:
"We are not the investigating authority in a military accident investigation. We are purely there to support the Board of Inquiry".
Later, he said:
"The scope and direction of the inquiry are determined by the Board of Inquiry. We would only consider those areas they felt we should consider".
In a case of this kind, when the Select Committee finds that such evidence is available and that no further questions have been asked about the issues, it is not unreasonable to suggest that, perhaps, we were not so

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unjustified in finding that the air marshals were not justified in their findings. I am not saying that any of the matters to which I referred were necessarily the cause of the accident, but, indeed, it is a possibility.
Like other noble Lords, I have considerable sympathy with the reviewing officers in the task that they faced. We should not lightly disregard their findings, but they reviewed only the evidence that the board of inquiry actually had. I have no doubt that they made up their minds honestly believing their findings to be correct. Nevertheless, it must be recognised that several bodies, including the fatal accidents inquiries, have come to an opinion—maybe it is just an opinion—different from that of the air marshals. I would have hoped that the Government and the Ministry of Defence would have been able, in the circumstances of the Select Committee report and in the light of the points highlighted at paragraph 176 of the report, to accept that there was, in retrospect, a sufficient element of doubt to call into question the correctness of the findings. That would have been recognised as a sign not of weakness but of strength.
10.18 p.m.
Baroness Michie of Gallanach: My Lords, as the former Member of Parliament for Argyll and Bute, I am grateful for the opportunity to take part in the debate considering the report of the Select Committee on the Chinook helicopter crash. The crash occurred on the Mull of Kintyre in my constituency on that fateful day, 2nd June 1994. Although none of those who died was my constituent, I was involved at the very beginning with the local authority and the emergency services. Once again I take the opportunity to pay tribute to them both for their swift and professional response to the catastrophe.
I pursued the matter in another place and took it up personally with the Prime Minister. I did so on behalf of my constituents, who were—still are—deeply concerned, as I am, that a verdict of gross negligence should be passed on the two pilots against a required standard of proof of "absolutely no doubt whatsoever".
I am no legal or technical expert and do not intend to rehearse all the arguments surrounding the disaster. That has already been done by many of your Lordships today. In fact, everybody who has already spoken seems to be an expert.
However, it seems to me, as a mere lay person, that this is now a question of facing up to the truth. The truth is that we do not know and we shall never know the precise cause, or causes, of the crash. That is surely the only honest answer. It remains a matter of grave concern to me that the Ministry of Defence continues to reject, in particular, the conclusions of the fatal accident inquiry conducted in meticulous fashion by the Sheriff, Sir Stephen Young, in Scotland, and, indeed, the conclusions of your Lordships' Select Committee that:
"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
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Something you often hear said is that it does not matter what you believe as long as you are sincere. Sincerity is, of course, vitally important, but history is littered with examples of sincerely held beliefs which have subsequently proved to be wrong. I have no doubt that the reviewing officers who carried out their painstaking task sincerely believe that their verdict of gross negligence was right. But they could be wrong. Surely it is impossible to reach such a conclusion which demands a high standard of proof. I respect the expertise of the senior reviewing officers and I understand their need to come up with an explanation, but even they do not know with absolute certainty what happened.
To see if I could draw any parallels or find similarities, I recently reread the reports of another quite appalling tragedy which happened on the west coast of Scotland to compare the conclusions and judgements of the subsequent inquiries. It occurred early on Wednesday, 1st January 1919. The "HMS Iolaire"—pronounced lolaire in Gaelic, meaning "Eagle"—sank at the mouth of Stornoway harbour on the Island of Lewis. There were 284 on board. The ship had a crew of 24 and was carrying 260 naval ratings returning home from the Great War.
On that dark night, with squally showers and heavy seas running, the "Iolaire" struck the rocks known as the Beasts of Holm at the entrance to Stornoway harbour. In total, 205 perished, including all the officers and most of the crew. Only 79 people survived. A public inquiry was convened in Stornoway presided over by Sheriff Principal Macintosh, with a jury of seven. Questions were raised about the failure to alter course and reduce speed at the appropriate time. While there were many criticisms and recommendations and, indeed, a call made by lawyers representing the bereaved relatives for a verdict of gross negligence, because the jury could not know the absolute truth about what had happened, no blame was attached to the officers and crew.
I appreciate that the practices in the three different services may not be the same, but a naval inquiry ruled that there was no evidence properly to explain the reasons for the accident as the ship's log was lost and none of the officers had survived. Consequently, the Admiralty concluded that,
"No opinion can be given as to whether blame is attributable to anyone in the matter".
Only the "Titanic" exceeds as Britain's worst disaster at sea during the last century, yet beyond the Minch few have every heard of the "Iolaire".
Earlier this year I visited again the site of the Chinook crash where stands the simple monument; a cairn constructed with stones from around the area. The purple heather has grown again hiding most of the scars on the hillside. But it will not hide the scars of the bereaved families. It was a beautiful spring afternoon and the sun glinted on the simple plaque depicting the names of all those who lost their lives on that tragic day. The view across to Rathlin Island was stunning, but within minutes the sun had gone and we were enveloped in mist as a squally shower swiftly came and went.

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I promised my former constituents who were there with me that day that I would try again to persuade the Ministry of Defence that in the interests of natural justice the verdict of gross negligence should be set aside and the matter finally laid to rest. I believe that that verdict will eventually be set aside—perhaps not by this Government, which is sad. I believe that it will be set aside and I therefore support the amendment in the name of the noble Lord, Lord Chalfont.
10.27 p.m.
Lord Cooke of Islandreagh: My Lords, I intend to speak from a different angle about this tragic accident: from my own knowledge, such as it is. I know the Mull of Kintyre well. I have sailed up and down it many times in different weather conditions. Sometimes it is clear and sometimes there are days similar to the one in question, with cloud formed over the Mull and a considerable amount of wind. I noticed that the wind was turbulent; that the clouds were constantly varying. At one moment one could see; the next moment one could not. The thickness of the clouds also varied. It was very changeable.
When I later saw the position of waypoint A, I was astonished that that was where they intended to fly on a day on which they had been given such a weather forecast. Waypoint A was almost, if not completely, in cloud. There was no business to be there at all. Who, I wondered, set that waypoint. I presume that the pilots set it beforehand. They should, in my view, have set the waypoint a mile or two miles short so that they had time to see conditions on the Mull and to take action to move safely away. As it was, no matter how they performed when they reached waypoint A, they could have had very few seconds before hitting the rock, as they did.
It happens also that I have spent many hours flying as a passenger in helicopters around the coasts of Ireland—north, south, east and west—in order to inspect lighthouses as that was the job of the Commissioners of Irish Lights of which at that time I was chairman. We flew in different conditions—we had to—and it was not uncommon for headlands ahead to be covered in cloud. This happened several times, but each time the pilot made his change of course several miles before getting to the cloud in order to be either above it or below it. When he went below it, I noticed that he was able to follow the line of surf, which could be seen because it was startlingly bright, round the edge of the headland. I am glad to say that we never had any problems. The pilots told me that they regarded being in such fog as a disaster because of being unable to judge how thick it was.
That reinforces my view that waypoint A should have been fetched up perhaps two or three miles short so that the pilots had plenty of time to make up their minds whether to fly round the Mull to the north or over the top. In fact, it would have been quite easy to turn to the left and fly round the Mull up the Sound of Jura. I am astonished that they did not do so. In my view, the pilots took an extraordinary risk in flying as close to the Mull as they did. I draw the conclusion that they must have displayed an extraordinary amount of
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carelessness or thoughtlessness to have gone as close as they did and to be in a danger that they should never have been in.
10.32 p.m.
Baroness Ramsay of Cartvale: My Lords, I should like to say right away that I have the deepest respect for the noble Lords who were the members of the Select Committee under the chairmanship of the noble and learned Lord, Lord Jauncey. But I have also to say that I do not believe that there should have been a Select Committee of your Lordships' House on this issue, and I viewed the decision of the House in April 2001 with deep unease for all the reasons that were well rehearsed then and some of which my noble friend Lord Brennan referred to today. I shall not repeat them here now. I think that a highly undesirable precedent has been set which I sincerely hope will not be one which is followed again. However, the House decided on the Select Committee and we are now taking note of its report.
I have to say to the noble Lord, Lord Chalfont, with great respect, that I find his tabled amendment a highly unusual device to say the least in a debate to take note of a Select Committee report, and I agree with what the noble Lord, Lord Burnham, said about that. I believe that it would lead this House down a wholly inappropriate and wrong path, so I sincerely hope that the amendment of the noble Lord, Lord Chalfont, is rejected if it is not withdrawn.
As I told the House in July of this year when we heard the Government's response to the Select Committee report, I speak as someone who had a personal interest in this tragic crash, and who has followed in some detail all that has transpired since June 1994.
We owe it to the families of all those affected by this tragic accident to find out what caused this crash. I believe that the only realistic explanation is that found by the reviewing officers, which continues to withstand the most rigorous tests applied to it. The standard of proof is high, but the reviewing officers were convinced that they could be and had been satisfied that the criteria of "absolutely no doubt whatsoever" had been met.
With the greatest respect to the Select Committee, I, unlike the noble Lords who were members of that committee, see no reason to, nor am I prepared to, second guess the two reviewing officers, the two air marshals, who, in addition to all the available expert information at their disposal, had their own considerable professional knowledge and experience of military flying. Evidence from the crash site, from the wreckage and from air traffic control, as well as eye witness testimony, all clearly indicate that this aircraft carried out a fast, low level transit and that the aircraft was under control up to and indeed at the time of the crash.
Air accident investigations are difficult procedures, often having to put together an incomplete jigsaw based on those facts that can be established, and I have to add that it is wrong to suggest that one has to

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disprove positively any and all theories put forward even if there is no evidence to support these hypotheses.
As I said in July, this is an issue of enormous pain for all the families of the victims of the crash. I want to make crystal clear that nothing I have ever said or ever shall say should imply other than that I have the deepest sympathy with the families of the two pilots, and complete understanding for all their actions. But I put it again to this House as I did in July that the time has come when a line should be drawn and the wounds of bereavement, which have been opened again and again since 1994, for all the families affected should be allowed to start to heal.
Lord Chalfont: My Lords, before the noble Baroness sits down, I wonder whether she is seriously suggesting that because of the hurt brought to the families of those killed we should cease to look for the truth in the matter? Would she mind telling me how many of those families she has talked to and whether she has received any information from them as to the course they would like to take?
Baroness Ramsay of Cartvale: My Lords, I do not think that we should discuss how many families we know who have been involved and what they have said to us. The noble Lord, Lord Chalfont, may do so if he wishes, but I certainly do not wish to. I am satisfied that the truth has been found by the two reviewing officers, so I do not think there is a question of having to go on to find the truth.
10.37 p.m.
Lord Glenarthur: My Lords, it is with a degree of reluctance that I take part in the debate. I have followed closely the history and substance of the various inquiries that have taken place to establish the cause of this tragic accident. Like other noble Lords, I feel desperately sorry for all those who, eight years on, are still affected by the uncertainty engendered by the continuing debate on what really happened and how any blame might be attributed.
I refer not only to the families of the helicopter crew but also to the families of passengers in the aircraft and to all those who have had the unenviable task of pulling together in colossal detail the facts as they see them and reaching conclusions about why it occurred, which, as the noble and gallant Lord, Lord Guthrie of Craigiebank, said, their duty required of them.
I have had considerable practical experience in the helicopter world. It might be helpful to your Lordships if I were to explain that. I have been a helicopter pilot since 1968. I have flown with the Army for five years and, latterly between 1976 and 1982, with what was then British Airways Helicopters. I have in excess of 4,000 hours' flying time mixed roughly half-and-half between light military helicopters and large commercial helicopters, and I have held an instrument rating. I also have a few hundred hours' fixed wing experience.
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My licences are not now current, but I have been for the past 10 years chairman of the British Helicopter Advisory Board, which is the trade association for all the commercial helicopter operators in the United Kingdom, and, through that, chairman for six years of the European Helicopter Association which is a grouping of associations throughout Europe similar to the British Helicopter Advisory Board. For several years I have also been chairman of the International Federation of Helicopter Associations, which deals with international regulatory issues and has observer status at the International Civil Aviation Organisation. I am also a fellow of the Royal Aeronautical Society, on the Council of the Air League, and a Liveryman of the Guild of Air Pilots and Air Navigators. So, in a sense, the practical operation of helicopters has formed a very large part of my working life.
I appreciate that the responsibilities that I have described are primarily concerned with civilian helicopter operations, but there is one concept that goes above and beyond any differentiation between the two types of flying and is common to both. I refer to the concept of airmanship, to which I shall return later.
Most experienced aviators agree that it is not one single factor which causes an accident, but a combination of factors. It would be possible to give examples, but, in the case of the Chinook accident, poor weather, low flying, a time factor, and, for whatever reason, a degree of uncertainty about precise position, were all factors conspiring against the crew; a combination of hazards from which perfectly clear rules were there to protect them.
I have had considerable experience of flying in command of helicopters on the North Sea. I have not flown the Chinook, although it was introduced on to the North Sea in its civil version—the Boeing Vertol 234—during my time. I flew the Sikorsky S61 N, which is capable of carrying in excess of 20 passengers with a fairly sophisticated instrument fit. It was equipped with an automatic flight control system, but not with an automatic pilot. So it was broadly similar to the equipment in the Chinook accident in question.
We used cloud-break procedures down to a very low level of about 200 feet in order to make an approach to oil platforms. Unlike military Chinooks, we were equipped with weather radar, which enabled us to have a clear picture of the platform that we were approaching. However, all of us became very used to appreciating the marked difference in forward visibility between, for example, a height of 300 feet, where visibility might be extremely limited, and perhaps 200 feet where there was substantial forward visibility—a set of circumstances not dissimilar to the experience of the yachtsman near the Mull of Kintyre at the time of the accident. The same was also true of approaches towards land in the event of bad weather where it was not possible to climb—for example, because of a freezing level near the surface in the winter—or for other weather reasons that required us to follow the coast back towards the airfield at low level.

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I have read the board of inquiry's report, the written evidence given to your Lordships' Select Committee, the Government's response to that report, and almost every other piece that has been written about the accident. I have also had conversations with many experts in the field. From all that has been said and written, it is perfectly clear that there is no evidence whatsoever of any technical failure that is likely to have caused, or contributed to, the accident. I am the first to appreciate that there have been a number of instances involving aspects of the Chinook Mk 2's introduction into service which at one point or another in the process of release to the service might have given rise to anxiety. But it is my clear opinion, as it is also of the air marshals, that none of them is strictly relevant to this accident.
This is where I turn to the matter of airmanship, which was also referred to my the noble and gallant Lord, Lord Craig of Radley, and, in particular, its relevance to the rules that govern safe flight under visual meteorological conditions. Those rules were clearly set out on slides shown to the Select Committee by Air Chief Marshal Sir John Day, and are shown on page 115 of the Select Committee's examination of witnesses document. Such rules are clear and unequivocal. They are not guidance; they are not woolly advice that a military pilot might, or might not, choose to follow. They are an instruction, and they are there to prevent inadvertent collision between either the subject aircraft and another one, the surface, or anything in the aircraft's path by allowing opportunity for avoiding action.
Those rules allow for the possibility that the pilot of an aircraft becomes unsure of his exact position—something which can happen to any pilot, irrespective of the quality or complexity of the navigation equipment that he has on board. They are the only guarantee by which a pilot flying under those conditions can be certain of avoiding imperilling himself and his aircraft.
Those rules cater for different speeds. Strict adherence to them ensures that the pilot of an aircraft could take whatever action is necessary under any circumstances to avoid hitting either the surface or anything in his way. Any failure of equipment, change in handling characteristics or other untoward event would, if strict visual meteorological conditions had been maintained, allow the pilot either to climb at once to his minimum safe altitude, to turn away or, most likely, a combination of both, particularly if inadvertently he had entered cloud or breached the minima for visual flight close to a known obstacle.
Like the noble Lord, Lord Gilbert, I have to say that it is wholly incredible to suppose that, just because the pilots were very experienced and considered highly efficient, they might not have breached those strict rules. I fear that most of us with considerable flying experience have probably stretched the limits of visual flight rules at limes and got away with it. I plead guilty to stupidity and to breaching these rules as a young Army pilot. Once, when rated of above-average ability, I allowed my judgment to slip, entered cloud deliberately and very nearly hit the ground, when
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undoubtedly I would have killed myself. I was the only person on board the aircraft at the time, but that momentary lack of judgment and over-confidence was a terrifying lesson on why such stringent rules exist.
When we talk about military aircraft, it is important always to remember that we are concerned with disciplined services, where rules are absolute and to be obeyed unless there is a very good operational reason for doing otherwise. By no stretch of the imagination can I, or very many others to whom I have spoken, conceive of any reason for flying a large helicopter, with or without passengers, at speed and at low level into doubtful visual meteorological conditions, probably breaching them, and entering cloud while approaching land from the sea, below the minimum safe altitude. It is, frankly, incredible; it exhibits a lack of attention to the concept of airmanship which is, or should be, dinned into the minds of all military and civil pilots throughout their flying careers, and which may be difficult for people not so familiar with flying to comprehend fully.
More than that, within a disciplined military ethos, those who determine causes of, and review, accidents are charged with a very real responsibility. As we heard, a board of inquiry is not a court of law. Its review by senior officers is a crucial element in the process and cannot be tackled with undue sensitivity. I cannot believe that it was with anything other than enormous regret that Air Marshals Wratten and Day reached their conclusions. There was no credible alternative. They had a duty to report as they saw fit, within the existing range of options open to them, using their very best experience and that of those around them. To my mind, it is not only perfectly justifiable, but it is only proper, that such a serious breach of the rules for visual flight should be regarded as negligent, and, under the terms of such a report being produced at that time, considered grossly negligent. If those rules had not been breached, there is no doubt that the accident would not have happened.
It gives me no pleasure whatever to disagree so strongly with the noble Lord, Lord Chalfont, for whom I have had enormous admiration over the years, and in part to cause further distress to the families of everyone concerned. But I have been closely involved with flying helicopters almost continuously for 34 years and I support 100 per cent the conclusions that the Government, through the Ministry of Defence, have reached in response to the Select Committee report. I very much hope that the noble Lord, Lord Chalfont, will not divide the House on his amendment. I cannot see that, even if the House votes for the amendment, it is likely to change the way things are. It is likely to cause further prolonged grief, uncertainty and anguish for all concerned, and that would be a step that I, for one, would most heartily regret.
Vast amounts of time have been spent examining this accident, not least by the Select Committee of your Lordships' House. Its report was very thorough, but, with the greatest respect to the noble and learned Lord, Lord Jauncey of Tullichettle, it concentrated on a series of supplementary issues that were incidental to the fundamental breach of airmanship and the strict

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rules governing visual flight at low level, which, I am afraid, was the ultimate cause of the accident and, thereby, the inevitable and proper verdict of the air marshals.
When I was commanding a squadron of Army helicopters, I had framed on the wall opposite my desk the saying:
"Aviation is not, of itself, inherently dangerous but to an even greater degree than the sea is very unforgiving of any incapacity, carelessness or neglect".
I am sad to say that this tragic accident falls clearly within the ambit of those words.
10.50 p.m.
Baroness Warnock: My Lords, I feel ashamed of having added my name to the long list of speakers tonight and of following the noble Lord, Lord Glenarthur, whose expertise would put anybody to shame. However, I should like to make two points. First, I totally agree with the noble Lord, Lord Brennan, that this was probably a bad occasion on which to set up a Select Committee of your Lordships' House. I yield to no one in my admiration for Select Committees. They work hard and dispassionately, they take evidence and, in my experience, they never go beyond what the evidence allows in drawing their conclusions. However, this was a difficult case because, as the noble Lord, Lord Brennan, has already said, the committee amounted to a court of law, finding people guilty or deciding that there was not sufficient evidence to deem them guilty.
Nevertheless, the Select Committee obviously worked hard. Like others who have spoken this evening, I read the report with enormous attention and interest. It is extraordinary and regrettable that your Lordships' House should find it necessary to refuse to accept the conclusions of the Select Committee, ill-advised though it may have been to set it up in the first place.
My second point goes back to the standard of proof required before the finding of negligence could be established. That is starting point of the amendment tabled by the noble Lord, Lord Chalfont. Those noble Lords who wish to assert the propriety of the finding of negligence have not explained how that extremely strict standard of proof can be set aside. As we have heard many times, the standard is that there should be absolutely no doubt whatsoever about the verdict. There is no doubt in my mind that some of your Lordships who are confident of the propriety of the verdict of gross negligence have recounted the story of what happened as a narrative, telling us what the pilots did and where they went wrong and asserting that they were rash, that they did not take the weather into account and that they were flying too fast and too low. Like many narratives, it is delivered with great conviction. The people who have told it have frequently said that it is the only realistic or credible explanation. That is the power of the good story teller, who proceeds on the assumption that they know how it must have been and then we all believe it.
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As regards the standard of proof and there being no doubt whatsoever of the propriety of the verdict, one must begin to doubt—as, indeed, people, including the unanimous body of the Select Committee, did doubt—that that standard had been reached. One may argue that it is an impossibly high standard and that there can be no past events for which it is proper to say that there can be no doubt whatsoever as regards what happened. Nevertheless, those are the relevant words.
I refer to the doubts, which I certainly do experience, for example, as regards the aircraft remaining under control right up until the end, as has been assumed in the stories that we have been told; that is, that the pilots did something wrong. But what if there had been a fault? It has to be remembered that the helicopter was virtually destroyed by fire. If there had been a computer fault, for example, there could have been no evidence left to find. Everyone agrees that the evidence was extremely thin. That fact alone seems to me to justify experiencing doubt. If doubt is experienced, according to the standard set there should have been no assignment of blame and no establishment of gross negligence on the part of the pilots. The evidence gained from simulation is not real evidence. The evidence left on the ground was negligible. I cannot see how doubt can possibly be precluded. Therefore, I am glad that the noble Lord, Lord Chalfont, brought his amendment forward.
10.57 p.m.
Lord Bruce of Donington: My Lords, I must confess to being a little dismayed by the observations that fell from the lips of the noble Lord, Lord Glenarthur. There was an air of complete certainty about them. To my mind he seemed to be in no doubt as to exactly what occurred and of the consequences.
I must say that I remain still very uneasy. I have no experience in aircraft other than as an occasional passenger during the war courtesy of the then Royal Artillery. But I still remain uneasy and I am still trying to find out why. There is no doubt in my mind that those of your Lordships who have taken the trouble to be here and to speak on this subject are deeply sincere in their own beliefs. I am quite willing to concede that their sincerity matches mine. It is just after all these inquiries that the matter is now shelved. I therefore have to give the House notice—not that it will shudder at it in any way—that I intend to pursue the matter further until I am satisfied, because at the moment I am profoundly uneasy.
My feelings are set out roughly in the report produced by the committee. I draw your Lordships' attention to paragraph 174 in which the committee sets out its final views on the subject. I do not know whether there were any skilful pilots on the Select Committee or how many expert pilots there are in the Ministry of Defence. It appears that paragraph 174 requires an answer. I have listened this afternoon to some very erudite observations but I remain unsatisfied. Without in any way being portentous, I seek to attribute enormous and solemn dignity to the report's paragraphs.
Paragraph 174 states:

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"In carrying out our terms of reference, we have considered the justification for the Air Marshals' finding of negligence against the pilots of ZD 576 against the applicable standard of proof, which required 'absolutely no doubt whatsoever'. In the light of all the evidence before us, and having regard to that standard, we unanimously conclude that the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
The Select Committee continues in paragraph 175:
"We consider it appropriate to identify those matters to which we have had regard which were not before the Air Marshals when they considered the investigating board's report:

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

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

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

I should explain that FADEC stands for "full authority digital engine control system". It is a piece of apparatus of some significance. It consists of a number of components, the two major ones being a digital engine control unit, or DECU, and a hydromechanical assembly for each of the two engines. The purpose of FADEC is to control the fuel supply to maintain approximately 100 per cent rotor speed in all conditions and to match engine torque between the two engines.
Paragraph 175 goes on to state that deficiencies in the Boeing simulation include the fact that,
"it used the postulated speed and ROC which have been shown to be incompatible".
It also states that the committee had regard for,
"the possible effect of contamination in the hydraulic fluid in the integrated lower control actuators, as referred to in the US Army report of June 1997".
Those points are fairly concisely put, considering that they emanate from a committee. In my view, they are unequivocal. The report of the committee concludes:
"How could it be that a very experienced crew, having planned to fly VFR, having taken when probably visual with the Mull the appropriate steps to alter course, when there was nothing to prevent them flying northwards within sight of the coast, flew into the Mull? It is as Sir John and Sir William speculatively described 'incomprehensible'…and 'astonishing'…We shall never know".
It has to be remembered that there is one overshadowing factor throughout the entire episode: there had to be no doubt as to the cause of the accident itself. The noble Lord referred to the RAF Manual of Flight Safety AP 3207, published by the Inspectorate of Flight Safety and in force at the time of the accident. Paragraph 9 of Annex G to Chapter 8 of the manual provided that only in cases where there is absolutely no doubt whatever should deceased crew be found negligent.
Within the welter of evidence and speculation that has attended this dire episode in both Houses, I ask myself: how can there be anything that removes a doubt in this 'matter? I do not know and have not made inquiries as to what hinges on the personal negligence finding against the pilots or the pilots' families. In the event of them being found "guilty", do their families suffer any financial penalty as a result, or does the
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finding that there is no doubt whatever mean that some financial burden is borne by someone? Is it, for example, a fact—I do not know and make no imputation whatever that—if they are found to be negligent, that will have some influence on the pensions that their families may receive'? I have not been told and do not know. Perhaps we can he told.
In all, reading through all the correspondence as an outsider, I still have a nagging doubt as to the correctness of the line that has been taken by the ministry. If widespread, that doubt is fatal to any indictment or blame attached to the pilots precisely, unfortunately, because they are dead. In those circumstances, in the absence of any doubt whatever, this whole business would never have begun. For my part, until I have no more doubts about the matter, the battle will continue.
11.9 p.m.
Lord Woolmer of Leeds: My Lords, the noble Lord, Lord Brennan, a member of the Select Committee, spoke wisely when he said at question 420 on page 146 of the oral evidence that intelligent people can look at the same set of circumstances and genuinely reach totally different conclusions.
In this tragic case such differences in conclusions have been reached, possibly because people have not looked at precisely the same set of circumstances in the same way. That was pointed out in powerful speeches by the noble and gallant Lords, Lord Craig of Radley and Lord Guthrie of Craigiebank. The noble Lord, Lord Glenarthur, also made an extremely powerful speech.
I am not persuaded by the conclusions reached by the Select Committee. This was a routine, civil flight, with no pressures on the crew to fly with anything other than the maximum degree of care and caution. The pilots had received meteorological information warning them of poor weather conditions in the vicinity of the mull. As they approached the land, the pilots must have been aware that their visibility could be reduced significantly, as indeed it was. Had they been flying within the minimum visibility allowed for visual flight, they would have recognised the seriousness of their situation and they should have taken appropriate and prompt action to turn away or to fly higher.
I found the oral evidence of Air Chief Marshal Sir William Wratten convincing on those points and on the conclusions that he drew from them. Even if, in the event, a tragic accident and deaths had not occurred, that would not have taken away the fact that the pilots behaved negligently.
In paragraph 147, the Select Committee posed the following criteria, which I found extraordinary:
"In the context of the Air Marshal's conclusions that the pilots were grossly negligent in placing the aircraft in the position in which it was…the question to be answered is whether there is absolutely no doubt whatsoever that they ought to have foreseen that their action would in all probability occasion the final event".
I found that an extraordinary proposition. If I were in a civil airliner approaching a runway in varying fog with no radar and poor visibility and I expected the

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pilot to land if he was less than absolutely convinced he would not crash, I would regard those as extremely poor criteria. I would expect the pilot not to attempt to land unless there was absolutely no chance of crashing quite the opposite to that posed by the noble Lords on the Select Committee.
Nothing in the committee report convinces me that the original conclusions of the two air marshals, following the due inquiry process, were invalid or incorrect. Bearing in mind the wise words of the noble Lord, Lord Brennan, I discussed the matter with the noble Lord, Lord Robertson of Port Ellen. As the incoming Secretary of State for Defence in 1997, he and his three ministerial colleagues—the noble Lord, Lord Gilbert, referred to this point—reviewed the incident with an open mind. To my good friend Lord Brennan I say that if he believes that George Robertson, John Gilbert, John Spellar and John Reid were all incoming Ministers who were soft touches for the military, he does not know them as well as I do.
Ten Ministers from different political parties all had the opportunity to review the evidence and all reached the same conclusion. In my conversation with him the noble Lord, Lord Robertson, went on to add—he agreed to me communicating this to the House in his absence—that he had read and considered the present report of the Select Committee and all the documentation and that he sees no reason to change his conclusion.
I believe that the decision of the two air marshals all those years ago remains justified and correct and is not diminished simply by the passage of time. I regret that I am unable to support the amendment of the noble Lord, Lord Chalfont.
11.14 p.m.
Lord Lyell: My Lords, first I—and I think the whole of your Lordships' House—thank and congratulate the noble and learned Lord, Lord Jauncey, and his Select Committee for the work that they have done. I have read the report and I am very interested in it.
First, I declare a mild interest. Among the passengers lost, one was my private secretary from my first job in Northern Ireland. The second was an extremely kind official in the Northern Ireland Office, who was more than kind to me on several evenings. That sense of loss, as well as that of the crew, will be felt by my noble and learned friend Lord Mayhew. I am sure he will have known many more who were lost. The passengers would have known me and many of your Lordships from our duties here and elsewhere.
The horror of the event in 1994 is still with me. It is revisited every time we have debates or discussions on this matter. The noble Lord, Lord Chalfont, will remember that I set up a meeting across the road in Abbey Gardens when I heard a full rundown on the FADEC, the Wilmington affair and all the aspects of mechanical and other possibilities—plausible possibilities—regarding the Chinook. Also, I had the luck to attend a briefing by the two air marshals. So I hope that I have had a fairly balanced briefing on all
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these matters. If there is a tinge of sadness in my remarks in what has been a fascinating debate, it is that I am slightly sad that the law and legal definitions have muddied a very difficult case.
Once again I was fascinated to hear the noble Lord, Lord Bruce. He shares with me the profession of accountant. It is a trait of the accountancy profession that we do not dabble in the law or in definitions. I felt that the noble Lord, Lord Bruce, was attempting to put his little toe into legal definitions. Certainly, we shall hear more about the matter from him.
It was set out in all the reports, as well as in the fatal accident inquiry, which has been mentioned, certainly by the noble Baroness, Lady Michie, that the entire four-man crew were the creme de la creme. It is in the report and witness A stated that they served with special forces. So they were probably one of the best crews in helicopter flying and in the Royal Air Force.
It is amazing to me that they were active in and around Northern Ireland during their duties with this aircraft. I find it hard to believe that the Royal Air Force would permit, or indeed tolerate, this distinguished creme de la creme crew to fly an aircraft, the Chinook Mk 2, that was in any way unsafe or unfit for duty, especially on special forces duty.
Curious evidence appears in the fatal accident inquiry and it has also been mentioned in other evidence that I have seen. On the day when the crew planned with great care this mission from Aldergrove to Fort George and back, they spent—it has been admitted—from 9.45 until 15.25 carrying out other duties in Northern Ireland. That seems to me to raise a question.
I agree that the lawyers, every fatal accident inquiry and all the discussions that have taken place in your Lordships' House and elsewhere have concentrated on what is in absolutely no doubt. But the motto of my institute of chartered accountants is "Seek the truth". I ask this question and I am sure that the Minister will not be able to answer, but some explanation will come out. Probably—it is perhaps not my business—it is operational requirements. But I find it curious that it has been admitted that the crew spent six hours of their permitted hours, when they were supposed to be flying to Fort George and back, in Northern Ireland.
I congratulate my noble friend Lord Glenarthur, and I admire the comments made by the noble and gallant Lords, Lord Craig and Lord Guthrie. The noble Lord, Lord Gilbert—who, alas, is not in his place—put the case beautifully. He indicated that "gross negligence" was possibly something of an overreaction, but that there had to be some description of pilot error. So far as concerns airmanship, my noble friend Lord Glenarthur has described it beautifully. I have personal experience of my noble friend flying with an instructor in a fixed-wing aircraft, in particularly difficult conditions, over my home. I was impressed then, and I have been impressed by his remarks in this debate. I have seen those qualities. I know him to be a practical man, and we have heard the points that he has made.

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I have listened to everything that has been said on this matter over the years. I am afraid that I cannot support the noble Lord, Lord Chalfont, if he presses his amendment to a Division. I shall support the Minister because I strongly agree with the Government's conclusions.
11.21 p.m.
Lord Vincent of Coleshill: My Lords, I find this the least welcome debate in which I have participated in my six years in this House. As a former Chief of the Defence Staff, I am keenly aware of the scale and nature of this tragedy and of the strong feelings and concerns that it has aroused. Not least, I realise the lasting effect that it will have on the relatives and friends of those who died. In the case of the two pilots who were killed, I understand the added horror and grief that must have resulted from a posthumous finding that they were "grossly negligent".
For the record, I should add that by the time of this accident I had relinquished my appointment as Chief of the Defence Staff and had been serving in NATO for well over a year. I therefore had no formal involvement with t his matter at all. But my earlier service experience has given me a clear understanding of the statutory duty and the heavy weight of responsibility that falls on those who have to review formally the findings of such boards of inquiry. Of course, their primary and overriding duty is to ensure that their judgments rest on convincing evidence which must satisfy fully the burden of proof required, as defined in this case in Air Publication 3207. But after meeting that requirement as an essential pre-requisite to their findings, they must also take account of the relevant lessons learnt from such inquiries, so that the risk of such accidents, whatever their causes, is minimised in future. Indeed, to fail to do that honestly and objectively could send a highly irresponsible and potentially dangerous message about acceptable flying standards to current and future generations of service aircrew.
Against that background, I have read very carefully the Select Committee's report and the Government's response to it. In this regard, I have to note that none of the current Ministers serving in defence appointments today, including the Secretary of State himself, had any formal involvement with this board of inquiry and its immediate aftermath. They have, therefore, had an unfettered opportunity to form their own judgment on it before formulating their response.
For me, one key issue emerges regarding the finding of "gross negligence", and this stems from a series of facts arising from both the report of the Select Committee and the Government's response to it.
The first is that the Chinook's SuperTANS navigation system, which was subsequently found to be performing normally at power-down (impact), showed the aircraft to be less than one nautical mile (0.81) from the Mull lighthouse and only some 600 metres from the cliffs ahead when the second waypoint was selected. That conscious change of waypoint also shows that the pilots were clearly in control of the aircraft at that time. Secondly, by the time at which
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that new waypoint was selected, the pilots should have been aware of their position relative to the high ground ahead, given that flying under visual flight rules demands at least 1,000 metres visibility. By that time, they were so in breach of visual flight rules that not only were they too late to conduct a cruise climb to the safety altitude of 2,400 feet that applied in this case, they were also too late to make an emergency climb to that altitude.
So my firm personal conclusion is that negligence had occurred because the aircraft was being flown in clear breach of visual flight rules by the time that the waypoint change took place, and that that was placing in increasing hazard the safety of the aircraft and those in it. It follows that the various hypotheses about subsequent possible systems malfunctions are irrelevant to that basic finding.
For those reasons, I cannot support the amendment moved by the noble Lord, Lord Chalfont. With great respect, I hope that he will now consider withdrawing it.
11.26 p.m.
Lord Fitt: My Lords, the noble Baroness, Lady Michie, described where the crash took place. I have a little cottage there from which I can see the site; I have visited it on many occasions. I have previously explained in your Lordships' House how cloud variations there could quite possibly lead to an accident.
This evening, my noble friend Lord Brennan made the most persuasive speech on any subject that I have ever heard in your Lordships' House. Anyone who reads that speech will be in no doubt as to what actually happened and what brought about the Select Committee's conclusion.
I felt like interjecting earlier when the noble Lord, Lord Glenarthur, asked a question, because the more that I listened to the various accounts of what happened, the more I wondered about this question. Are the two pilots in charge of the helicopter at any given time, or is one pilot steering the helicopter, while the other sits beside him, willing to take over if he gives up? If one pilot is guilty of driving the aircraft into the mountain and the pilot beside him is not, why blame the two pilots? It is quite possible that one of them had no part to play in the crash.
The noble Baroness, Lady Michie, said, and I repeat—I have used these words in previous debates—that this subject will not go away. At some time in future, whatever government is then in power will reverse the decision.
Only last week, we all watched the Channel 4 television programme that set out to discredit and make fools of your Lordships. I admit that I was very annoyed about it. Your Lordships decided to set up a committee to inquire into all the circumstances of the Chinook crash. It has issued a report, and we are now asked to say, "We set up the committee; it held an inquiry; it arrived at a different conclusion; but let us just forget about it". That would be a derogation of the responsibility of your Lordships' House. If the House

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sets up a committee to inquire into something, we should be prepared to carry it to its ultimate conclusion.
I appeal to the noble Lord, Lord Chalfont, not to be beaten off track by people saying, "There are regulations; this has never been done before and we should not break with tradition". The five Members of your Lordships' House went into every aspect of the Chinook crash in great detail. The House should be asked tonight to give an opinion, to see how that opinion is received in the country. I have no doubt that the overwhelming majority of the people to whom I have spoken would fully support the exoneration of the two young pilots.
11.30 p.m.
Lord Hooson: My Lords, I apologise for getting up to speak in the gap. I had withdrawn my name from the list for personal reasons that are known to the powers that he. However, on returning via the House of Lords, I discovered that your Lordships were still discussing the matter. As the fifth member of the Committee, I should say how much I appreciated my four colleagues and the thought and the care that they gave to hearing the evidence that came before us.
When we started off, we all had different views. I do not share a room with my noble friend Lord Mackie of Benshie for nothing. Properly, I had it drilled into me that I should always remember the test of good airmanship. I did, and so did the other members of the Committee. However, having heard all the evidence—much of which was extremely impressive—on both sides of the argument, including that of the air marshals, we were unanimously of the opinion that no court in the country could say that it was negligence, established to the standard required for the case by the directive from the Ministry of Defence itself.
I remind your Lordships of one thing—in fact, it is more than one thing. Air Chief Marshal Sir John Day told the Committee that it was,
"incomprehensible why two trusted, experienced and skilled pilots should…have flown a serviceable aircraft into cloud covered high ground".
I can readily understand why he said that. However, one reason for the accident could have been that there were two fallible pilots and both happened, extraordinarily, to be of the same mind at the same time. In fact, I suggested in questioning that, given their knowledge and background, the pilots must have been on a suicidal mission to do what they did. The air marshal—whichever one it was I put that to—objected to the suggestion. The other possibility is that there was a fallible machine. In the end, do we say that the two pilots who were killed cannot speak for themselves? There are no records of what they were doing at that time, and there are two different views from other air officers with, I respectfully suggest, knowledge equal to that of the air marshals. However, another possibility is that, at some stage, there was a problem with the machine that caused the crash.
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Afterwards, as we know, the evidence from which conclusions could be drawn was, as the chief investigator pointed out, very thin, due to the damage to the aircraft. Air Commodore Crawford—now retired—rejected the investigating board's conclusion that the most probable cause of the accident was selection of an inappropriate rate of climb. He gave his reasons, which I do not intend to go into. None the less, he pointed out that the change of WP to go for Corran, which was selected late on, was explicable only if they were going to go along the coast.
I need not go into detail, but I will say that we had a string of impressive witnesses, of whom the most impressive, to my mind, was the witness called A. He was a highly decorated and experienced pilot, who came back from Afghanistan to give evidence. He said exactly the same—at least, he held the same view—as Air Commodore Crawford. He had been working with both those pilots. He knew the area backwards and he described what he thought that the two pilots were doing at the time. It was not in accord with the thoughts of the air marshals, but this was an officer who had worked on special duties in Northern Ireland and knew the ground backwards and he had as much intimate knowledge as any of the air marshals. He was a very impressive witness.
In conclusion, I do not believe that any court in the country who had heard the evidence that we heard could possibly have concluded that it was proven beyond absolutely no doubt that those two pilots were guilty of negligence.
11.36 p.m.
Lord Redesdale: My Lords, we have had a debate today which has exhibited rare passion in this House. That is probably because it is such a tragedy that 29 people lost their lives. My noble friend Lady Michie gave a moving account of the crash site today. That was the first time I heard that Members of this House—the noble Baroness, Lady Park, and the noble Lord, Lord Lyell—lost friends in the accident.
There has been much speculation in the press and on the Internet that the crash and the resultant cover-up is part of a conspiracy. I do not believe that for one second. The crash was either mechanical error or pilot error. One of the problems that I believe goes to the crux of why we are debating the issue today is that if it was pilot error, the phrase "gross negligence" is associated with that. I should like to echo my distaste for that phrase, as expressed by the noble Lord, Lord Gilbert. One of the difficulties with such a phrase is that it has such unfortunate connotations.
This is the second time that I have spoken in the debate—I am a relative novice to many in this Chamber—and I commend the assiduous work of the noble Lord, Lord Chalfont, in following the issue. It has been a tortuous process over many debates and there has been a real result from the work that he has undertaken. The conclusion of the board of inquiry could not have been arrived at if the board of inquiry had been held today. The charge of "gross negligence" could not have been placed at the door of the pilots. That is a real achievement.

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However. the other aspect that has to be looked at and which has been the subject of most speeches is that of onus of proof. There appears to be a fundamental difference between a board of inquiry and a court of law. That is perhaps why there is such an even spread of opinion—I noted that while writing against noble Lords' names whether they were for or against. It goes to the heart of whether one believes that a board of inquiry was what was being undertaken—that was eruditely explained to us by the noble and gallant Lord, Lord Craig—or whether one was discussing the criteria that would have to be met by a court of law, a point so ably expressed by the noble Lord, Lord Brennan.
Like many noble Lords, I have to admit that on reading the evidence I have vacillated over which side I should come down on. It is an extremely complicated issue. To begin with I believed that the case was clear cut; that because there must be doubt in people's minds, the air marshals must have overcome that hurdle.
I then thought of some of the personal experiences I have had living next to a training area. My house is on the flight path of helicopters and I have seen large numbers of them. Unfortunately, I have also seen a large number breaking height restrictions on a fairly regular basis. It happens and one notices it when one lives underneath their flight path. Therefore, I do not see it as incomprehensible that pilot error was to blame, as my noble friend Lord Hooson pointed out. It is extremely unfortunate if that were the case and I would not like to put forward the charge of gross negligence. The pilots had a short period of time in which to make decisions and unfortunately there were tragic consequences.
It is a question of whether noble Lords believe that the onus of proof has been met on pilot error or an unexplained mechanical error. I accept the conclusions of the committee, which has come forward with a considered report. However, I have also been swayed by the arguments put forward by many noble Lords who have practical flying experience and have dealt with helicopters. It is interesting to note that helicopters have one of the highest insurance ratings of any form of transport.
I hope that the noble Lord, Lord Chalfont, will not press his amendment. The committee has put its report before the House and I believe that the House has accepted it. But the Government have also replied and they have rejected to a degree the findings of the committee. I hope that it is left at that because I believe that the noble Lord's amendment will go a great deal further and perhaps detract from the excellent work undertaken by the committee. However, if the noble Lord, Lord Chalfont, pushes the matter to a vote, it is for each individual Member to make up his own mind and to use his judgment.
11.42 p.m.
Earl Attlee: My Lords, I am extremely grateful to the noble and learned Lord, Lord Jauncey, and his extremely strong Select Committee for answering a
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question that I was unable to decide myself. I remind the House of my somewhat peripheral interest. A few noble Lords mentioned party politics. As far as I am concerned, this is a matter for the House and my noble friends behind me can vote and speak as they feel appropriate.
For me, this has been far and away the most difficult issue to deal with in my short time in your Lordships' House. For obvious reasons, it is most sensitive and complex and technical legal issues are involved. I am also acutely aware that we are interfering with military discipline and opinions are sharply divided across the House. Some noble Lords may believe that pensions and compensation are an underlying issue. Can the Minister confirm that all the families of the aircrew and passengers are appropriately provided for and that changing the findings will not alter those arrangements?
It is important to recognise that at one time the RAF had an unnecessarily high accident rate. It must be the objective of the air staff to maintain a low accident. rate by having robust procedures for dealing with accidents. However, that objective will not be achieved if there is any perception of unfairness or unreliability in the proceedings.
Some noble Lords questioned the wisdom of setting up a Select Committee. I believe that it was the right course of action. The matters are certainly too complex for me to decide and I know that other noble Lords have the same problem. I am extremely grateful to the noble Baroness, Lady Symons of Vernham Dean, for acquiescing to the setting up of the Select Committee.
I do not believe that the Select Committee has set a dangerous precedent. Only a noble Lord of the standing of the noble Lord, Lord Chalfont, could succeed in persuading the House to set up a Select Committee and it will certainly remain an extremely unusual procedure. The real nightmare would be a judicial review of ministerial decisions when they support the chain of command.
One overriding advantage of the Select Committee is that it brings the matter to a conclusion. I cannot speak for the usual channels, but I would he surprised if they allocated more time to this matter.
I do not intend to cover the arguments for and against the pilots. I voted for the Select Committee to do that and your Lordships have debated the issue in detail today. It is entirely proper that we should have had this full debate, which has been well informed throughout.
Some noble Lords raised the issue of cockpit voice recorders. It was extremely unfortunate, to say the least, that CVR was not included in the mid-life upgrade of the Chinook.
It is worth examining how we have got to where we are now. I am certain that the board of inquiry was composed of officers of the highest calibre. They will have hoped privately that they could find no human failing in anyone. They will have done their utmost to

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find the real cause of this terrible accident. They will not have enjoyed their task, stimulating though it may have been.
Like many noble Lords, I was confident that the RAF had an extremely good air accident investigation procedure. I assumed that it was at least as good as the civil procedure—that was until I read the Tench report of 1987, which covers the investigation of aircraft accidents in the services. Can the Minister tell the House whether he has read the Tench report? It can be easily found in the Library if noble Lords are interested.
The background is that in 1986 my noble friend Lord Trefgarne commissioned Mr William Tench, who was the recently retired chief investigator of the Air Accident Investigation Branch at the Department of Transport, to produce the report. My noble friend apparently encountered a certain amount of resistance from the Air Staff.
Tench reported in January 1987. His analysis of the problem covers 17 pages. He tries to be diplomatic and tactful, but nevertheless it is an extremely interesting report. For example, on page 2 he states:
"I have seen no record of the appointment of any person expert in the techniques of accident investigation or the analysis of flight recorded data being appointed as members of the Board".
On the same page he continues:
"The members of the Board receive no formal training in aircraft accident investigation and seldom have any previous experience of this type of work; at best a member may have served on one previous Board of Inquiry".
On page 9 he states:
"A disturbing feature is the influence which senior officers seek to exert on the investigation process, particularly in the RAF. Presidents of Boards are conscious of a 'hovering presence' in the background which in reality is nothing more sinister than an anxiety to implement corrective measures as soon as they are identified".
In his summing up of the current situation he states:
"The reason for this poor performance is that the Board of Inquiry system, by its very nature, ensures that in all but the unusual cases when an officer is appointed to a Board on more than one occasion in his career, the investigation is conducted by complete novices. There is no opportunity to accumulate knowledge in the techniques of accident investigation, nor is there any continuity of effort".
Noble Lords will be aware that the AIB has an important role in helping the board and that it is highly regarded abroad. However, my noble friend Lord Bowness referred to the caveats of Mr Ken Smart of the AIB. I believe that Mr Smart's caution was wise.
Noble Lords will have expected some improvement in the intervening years between the Tench report and the board of inquiry for this accident. Sadly, it still appears, as we have discussed, that no member of the board had previously sat on a similar board; and no member of the board had attended even a basic course in air accident investigation. My understanding is that the engineer member of the board, while extremely experienced, a specialist on Chinook and highly-qualified to do his normal duties, whose character and integrity are beyond question, was not a professional engineer. He was not a chartered engineer or anything
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equivalent. However, his duties as a member of the board were to ask penetrating questions of people who were professional engineers.
I again emphasise that I am not calling into question the personal qualities of members of boards of inquiries. I am questioning whether they have the training and expertise to undertake their task. The noble and gallant Lord, Lord Craig of Radley, let the cat out of the bag when he said that boards of inquiry are appointed for their aviation expertise. He also explained that the RAF mercifully has experienced few accidents recently. However, that means that the RAF collectively has correspondingly even less experience in accident investigation.
Will the Minister say whether he has complete confidence in the current service air accident investigation procedures, or will he instigate a review? Noble Lords will question whether any weaknesses identified by Tench impinge on this matter. I believe that they do. For instance, my noble friend Lord Bowness referred to the rather less than thorough interviewing of Mr Holbrook. Another difficulty is the non-FADEC simulation of a Mk 2 Chinook, a problem not originally recognised by the board.
The air marshals properly relied on the board of inquiry in coming to their conclusions, but I do not find the board findings reliable; not for a lack of personal qualities, experience or dedication in its members, but because they are not air accident investigators. If the noble Lord, Lord Chalfont, presses his amendment he may not achieve his objective, but I shall support him.
I am sure the whole House will join me in offering our sincere condolences to all those so painfully affected by this tragedy. We also need to thank those who had the difficult task of dealing with the physical aspects of the accident. We also sympathise with those who had the unenviable task of carrying out the investigation.
11.53 p.m.
Lord Bach: My Lords, I thank all noble Lords who have spoken in the debate. It is very late and I do not intend to take up any more of the House's time than is necessary. The standard of speeches on both sides has been superb. It is rather invidious, but I should like to pick out the speech on the one side of this argument of my noble friend Lord Brennan and on the other of the noble Lord, Lord Glenarthur. Both speeches were outstanding.
I too begin by extending my deepest sympathy to the families and friends of all those who lost loved ones in the crash. There is no doubt that the events of that June evening nearly eight and a half years ago were a tragedy and that the sad consequences of the accident will remain with all those involved. I am conscious, as everyone must be, that the constant revisiting and questioning of the circumstances of the accident can only add to the heartache of all 29 of the bereaved families. We should not forget any of them.
Before reflecting on the points raised during our debate, I want to echo the many words of appreciation and thanks that we have heard this evening for the

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work of the Select Committee. I am delighted that all members of the committee have spoken in tonight's debate. I thank them for staying so late in order to do so. It was, of course, a highly unusual step to set up the committee in the first place. Indeed, the House will recall that it chose to do so against the advice of the Liaison Committee.
One of the reasons given by the Liaison Committee for issuing what was, perhaps, prescient advice against the establishment of the committee speaks for itself:
"Select Committees are a good vehicle for the examination of public policy issues but are not equipped to replicate the function of the higher courts in addressing alleged miscarriages of justice".
However, the noble and learned Lord, Lord Jauncey, and the rest of the Select Committee did everything that they possibly could to get into the bowels of this particular problem. The House is grateful to them for their efforts and diligence in reviewing the justification for the finding of negligence, which was not an easy task. Your Lordships know very well the Government's response to the Select Committee report, published some three-and-half months ago. Indeed, a variety of views and opinions on our position have been expressed in this debate.
But there was, and is, simply no reason why two highly regarded and well-trained special forces pilots should have flown at speed so close to the Mull, into poor weather that they had been warned to expect. As has been said, this was contrary to all their training. The inquiry's two senior reviewing officers concluded that the failure to take action before the waypoint change to avoid the high ground ahead amounted to gross negligence.
Some may think that that was an easy decision for those air marshals to have taken; but it was the opposite. It was not taken—indeed, could not have been taken—lightly. Sir John Day, one of the reviewing officers, summed up his feelings in evidence to the committee by saying that it was the "hardest decision" of his career, and one that was taken only after the fullest consideration of all the evidence. Without doubt, it has been one of the hardest duties that defence Ministers have had to perform, and consider, over many years. I rather share the resentment of my noble friend Lord Gilbert at the comment of my noble friend Lord Brennan that Ministers have been sucked in by the Ministry of Defence, and that, somehow, political considerations would have been of some importance. My goodness! The political considerations would have been to give way, and to do so a long time ago. However, to the credit of defence Ministers, both in the previous Government, and, I hope, also in this Government, they have not done so. That easy course has not been taken. It seems to me that that particular remark in an otherwise superb speech was slightly unfair.
The material in the report of the noble and learned Lord, Lord Jauncey, has been studied in great depth. We have looked at the matter from every possible angle. and published our findings to allow others to scrutinise them. I can understand that many would have wished us to reach a different conclusion from
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that of the reviewing officers, and that would certainly have been the easy way out. But just because it would have been easy would not have made it right.
Those who have campaigned for the finding of negligence to be overturned have questioned how two well-regarded and highly trained pilots could have conducted this flight in the way that they did. The simple answer is that we do not know; and we probably never will. But, as the noble and gallant Lord, Lord Craig, clearly and most thoroughly explained, pilots are human. They can and do make mistakes—even the very best of them. Indeed, I have spoken to very experienced pilots who have told me that they have come within a whisker of disaster through their own actions, or inactions. All of us have heard about such experiences tonight. The noble Lord, Lord Glenarthur, told us the story of the close brush that he had with death.
I turn to the findings of the committee, which commented in particular on the original simulations that Boeing carried out to assist the board of inquiry. It was only right that those comments should be brought to Boeing's attention. We also wanted to get to the bottom of any possible ambiguity. So we commissioned further work, which used a more advanced model fully reflecting FADEC technical parameters and flight performance. I remind noble Lords that Boeing is the aircraft manufacturer and the design authority, which renders it uniquely qualified to comment on the aircraft's capabilities. We have published its full report and the supporting detailed documentation. Some Members, including the noble Lord, Lord Jacobs, have suggested that the results of this further work constitute new evidence and provide an opportunity to revisit the board of inquiry finding. But Boeing's latest work, which considered its previous work in great detail, has shown that the original results for airspeed shortly before impact were on the high side. However, it also confirms that the average airspeed, which was fairly constant, was high.
As noble Lords who studied our formal written response to the committee's report will know, all this information has enabled us to determine a clear picture of the final flight path. Of course no simulation can tell us precisely what happened, but Boeing's work has clarified further the capabilities and constraints of the aircraft, enabling us to dispel finally the hypotheses relating to technical malfunctions that have been raised in an endeavour to explain or cast doubt on the cause of the accident.
I do not intend to dwell on technical matters related to the flight, because there is not enough time. However, they warrant detailed attention, and I direct noble Lords to our full written response on the matters should they wish to pursue them further. It is appropriate to remind the House that there has been much speculation regarding the last 20 seconds or so of the flight. The committee accepts that it is highly unlikely that the crew would have made a waypoint change if they had thought they were not in control. Unless I misread paragraph 163 of the report, the committee accepts that the crew were in control at the waypoint change. In any case, the reviewing officers'

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determination was not predicated on what may or may not have happened in the final seconds, although we remain convinced that the aircraft remained fully serviceable and under pilot control until impact. There is simply no evidence to the contrary.
Some still doubt whether the "absolutely no doubt whatsoever" test could be met. We recognise that this is a very high standard of proof. But the unique work of the RAF necessarily demands that the highest standards be set. The MoD and the RAF rightly demand the very highest standards of airmanship, about which we have heard lots from people who know about it. The responsibility to take a very high degree of care is rightly imposed upon a pilot flying an aircraft or responsible for its maintenance or control. A finding of negligence amounts to severe criticism, but it is the standard that was set. I emphasise that this standard was a practical test and was capable of being met.
As I made clear in my Statement to the House in July, the reviewing officers were required to be in no doubt that the pilots' negligence was a cause—although not necessarily the sole cause—of the accident. Negligence can itself be the cause of an accident, or it can be one of a number of causative factors. The reviewing officers were charged with considering all the evidence as a whole. They were entitled to call on their own knowledge and experience of military flying and to take proper recognition of the very high standard of airmanship that is required of RAF pilots. That is precisely what they did.
We have discussed the definition of negligence that prevailed. The Guide to the Consideration of Human Failings, which was referred to, could not make the definition clearer. According to paragraph 4 of the document, negligence may be defined as:
"(a) The omission to do something which, in the circumstances, a reasonable person would do or,
(b) The doing of something which, in the circumstances, a reasonable person would not do or would do differently".
I cannot see why that definition was not referred to in the Select Committee's report.
The document continues:
"When related to flying aircraft or to aircraft maintenance, neglect means a breach of duty to take care, or in other words, carelessness in a matter where care is demanded. The duty to take care varies according to the operation being performed and a duty to take a very high degree of care is rightly imposed upon a person flying an aircraft or responsible for the maintenance of its controls".
Then come these words:
"In such circumstances, what might be trivial in other fields may, when associated with aircraft operations, amount to negligence which justifies severe criticism".
Those were the guidelines under which the air marshals had to work.
Others have argued that this is not really a legal matter, but one of natural justice. It is true that this is a sensitive and emotive case. As I have said, many people would like a different conclusion from the one we have reached. We understand that view. However, where human factors were judged to have contributed
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to the accident, the RAF rules at the time required the reviewing officers to reach a view on the culpability of the air crew concerned. It was their duty to make such a judgment and they could not avoid it. The same principle applies now to our consideration of the various reports into the accident. It would be very tempting for us to take an easy, politically attractive and no doubt popular move by acceding to the amendment of the noble Lord, Lord Chalfont, but it would be wrong to do so.
Others have taken the view that changing our rules to no longer find blame shows how unjust it was to find the Chinook pilots negligent. This is a matter of general principle. We cannot turn back the clock. The board was properly convened and conducted in accordance with the procedures that existed then. The suggestion that we should disturb the rules of the day because they have subsequently been altered is clearly misconceived. The primary purpose of any such board of inquiry is to determine the cause of the accident. That is what was done. The Government do not believe that the reviewing officer's judgment was incorrect.
I assure noble Lords that we have every faith in the board of inquiry procedure and those who contribute to it—both then and now—to do so on the basis of their specialist skills and experience.
The noble Earl, Lord Attlee, referred to the Tench report. The report was commissioned by the noble Lord, Lord Trefgarne, in 1986, when he held the job that I hold now, and was drawn up by Mr Tench. The report was carefully considered at the time, but was not accepted. It made recommendations for improving service accident investigation procedures. It included proposals for establishing a tri-service accident investigation unit and other matters. There was much in the Tench report that was ahead of its time and has subsequently been taken into government policy, but we cannot turn back the clock. There is nothing in the report that undermines the findings of the board of inquiry, which was properly constituted and carried out in accordance with the rules that applied in 1994.
This was obviously a tragic accident. It is entirely understandable that the families of the deceased pilots continue to fight to absolve them of any blame. I acknowledge and respect the unstinting work carried out by the noble Lord, Lord Chalfont, in support of the families and the tireless efforts of his campaign group in their genuine belief that a wrong needs to be corrected. In that regard, my right honourable friend the Secretary of State and I have been pleased to meet the noble Lord and others on a number of occasions, the last of which was very recently, in our endeavours to resolve the issue.
However—and this is the most important thing that I shall say tonight—I strongly believe that it is now time to move on. The noble Lord, Lord Chalfont, has moved an amendment to the Motion of the noble and learned Lord, Lord Jauncey, that the House take note of the Select Committee's report. This is a highly unusual step. Regardless of the merits, from a House of Lords viewpoint it is a backward step. House of

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Lords Select Committees deservedly have a high reputation gained over many years. An important part of that reputation is the way in which their reports are dealt with on the Floor of the House. The chairman invites the House to take note, and a full debate ensues, just as has happened tonight, with sincerely held and different points of view expressed cogently and with passion. The take note Motion is then carried.
There is no precedent, save one in very different circumstances 24 years ago, for the course that the noble Lord, Lord Chalfont, proposes. If he puts this to the vote, it will set an extremely unfortunate precedent. It is often said that the conventions of this House are there for a purpose and it is unfortunate to breach them, however genuine and heartfelt the cause may be. Even at this late hour I urge the noble Lord when he replies to consider not just what I have said but what other noble Lords right across the House have said and to withdraw his amendment.
I repeat that although many and varied hypotheses have been put forward to explain the accident, the only realistic explanation is that found by the reviewing officers of the board of inquiry. However, I make the pledge, as has been made by my right honourable friend on many occasions, that the Government will of course look again at any new material should it arise.
I agree very much with what the noble and gallant Lord, Lord Guthrie, said; namely, that the explanation for this accident is basically not complicated. It is difficult, but not complicated. Indeed, I strongly agree with what the noble and gallant Lords, Lord Guthrie, Lord Vincent and Lord Craig, the noble Lords, Lord Glenarthur, Lord Gilbert, and others have said on this matter.
As they approached land, it seems that the pilots would have been aware that their visibility was about to reduce significantly. Had they been flying with the minimum visibility allowed for visual flight rules, before the waypoint change they would have seen the land mass of the Mull 1,000 metres away and would have recognised their perilous position. They should have taken prompt action either by flying higher or by turning away. If they were in fact already in cloud, then by definition they were in breach of visual flight rules, and should have converted to instrument flight rules and immediately climbed to safety altitude. The finding of negligence is underpinned by the fact that they failed to take either of those avoiding actions. That is our case. I am afraid that nothing I have heard tonight makes me doubt that case.
The noble Earl, Lord Attlee, asked whether appropriate provision had been made for the dependants of the two pilots and, indeed, for all others on board. I confirm that that is so. I remind the noble Earl, Lord Attlee, that the question was posed by the noble and learned Lord, Lord Jauncey, in a letter to my right honourable friend the Secretary of State before his committee first met. I say for the benefit of the House that it is published at page 83 of the written evidence which states:
"Full and final settlement of the claims for compensation for the dependants of the two deceased pilots was reached on the basis of 50 per cent contributory negligence and with both parties
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acknowledging (although not necessarily agreeing) the basis on which the settlement was reached. The families of the deceased pilots have not admitted liability".
Both families are being paid abated pensions taking into account the compensation they received. I hope that that gives the noble and learned Lord the answer that he was looking for.
I end by saying that the Government's position will be unwelcome to those campaigning against the decision. No one has benefited from the protracted discussions that have been played out in the media with regard to this tragic flight, least of all the relatives of those who died. But we believe that the reviewing officers' findings continue to withstand the most rigorous scrutiny. In those circumstances it would he wrong to interfere. I suggest that the time has now come for us to move on. I very much hope that the House will pass the Motion in the name of the noble and learned Lord, Lord Jauncey.
12.15 a.m.
Lord Jauncey of Tullichettle: My Lords, at this late hour I have very little to say. The noble Lord, Lord Gilbert, was somewhat incredulous when I said that the first waypoint was the Mull of Kintyre lighthouse. In doing so, I relied on the report of the board of inquiry. The noble Lord will find the relevant reference on page 11 at subparagraph (2).
The noble and gallant Lord, Lord Craig, criticised our guidelines on the standard of proof. They involved the phrase, "absolutely no doubt whatsoever". We had to find some definition for that. It is not a standard known to the law and it is clearly higher than the highest standard of proof in the criminal law. We therefore thought it incumbent to establish what would be appropriate. That explains our approach.
On the suggestion that our criticism of the appointment of Wing Commander Pulford was unfair, we simply had in mind the fact that one of the air marshals pointed out that this was the worst tragedy that the Royal Air Force had suffered since the war. Having regard to some of the fairly light questioning by the board, we thought that it might be advantageous to have an officer with more experience of conducting a board of inquiry.
I do not propose to deal with the comments of other noble Lords, who clearly did not approve of our conclusions. I make one general observation. Many noble Lords referred to the fact that there was no evidence for this or for that; however, given the high and totally unusual standard of proof, the test was not whether evidence could be found but whether there were possible or plausible explanations that had not been disposed of. There is no doubt in this regard that the aircraft flew low and at speed into cloud and then into the Mull. Stopping there, the answer is, as we say in the law, res ipsa loquitur: the pilots were to blame, and that is the end of the matter; we need not go any further. However, one must bear in mind that the pilots made the waypoint change, which was clearly designed to give them a course for waypoint B at Corran. They indicated their intention to fly VFR the whole way. Those two matters created doubt in our

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mind about what had happened and whether the aircraft was under control throughout the passage from there to the crash site.
I question the Minister's observation that the new Boeing simulation threw light on possible malfunctions. It did not do so at all. It produced findings about the possible speed and rate of climb beforehand but, as I understand it, it certainly did not confirm or dispose of any possible mechanical malfunctions. I notice that my noble friend Lord Tombs is nodding his head.
When the fact of making the waypoint change and the declared intention to fly IFR are taken together with possible defects that could not be excluded by the board or Cable, the senior air investigator, one is driven to wonder why the pilots chose to fly on into conditions that they could see and which necessarily involved VFR. It is that which, in the view of the committee, raised doubts as to whether the aircraft was under control at the critical time.
So far as arguing that the aircraft was in danger at the waypoint change, I suggest that that presupposes that the aircraft was going to continue its course and speed and that it was not necessarily in danger. Had it slowed down and altered course to Corran, that would have reduced the radius of turn. We do not know what the intentions were. But if that had been the intention and the pilots were thwarted, I very much doubt whether the pilots could have been said to be negligent in having brought the aircraft to that position. I have nothing further to add.
12.21 a.m.
Lord Chalfont: My Lords, there has been a certain amount of talk about the wisdom or rectitude of a House of Lords Select Committee considering this problem. I find that an extraordinary argument. This is part of the Parliament of this country. If Parliament is not able to scrutinise the activities of the executive in a Select Committee or in any other way, I believe that we shall get into very dangerous waters. There has also been talk of setting a precedent. I must confess that I am not terribly frightened about setting precedents. If setting a precedent will correct manifest injustice, I shall be proud of doing so and not ashamed.
I have heard some very strange statements tonight about this accident and about the verdict of the air marshals and the Select Committee. I can only say that, in listening to some of the contributions, I have been reminded of the statesman who once said, "I wish I could be as certain of anything as he is of everything".
There has been much talk of the need for us poor, ignorant lay people to defer to the views of aviation experts. This is not a question for aviation experts. Any suggestion that it is is probably what has been wrong throughout the whole of this long, seven-year business. It is aviation experts who have produced the briefs for Ministers year after year. The same brief for every Minister and the same words have been produced every time the subject has come up.
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Airmanship may be a very sacred concept in aviation, but aviation has absolutely nothing to do with what we are supposed to be discussing tonight. This is a question of natural justice and of putting right a terrible miscarriage of justice. It is nothing to do with airmanship. As I said, airmanship may be an extraordinarily useful concept in aviation when one is flying an aeroplane or when the Royal Air Force is engaged in operations. But this is a question of natural justice and law—not airmanship.
I wish that, in approaching this problem, we had been able to concentrate a little more on the words that I used at the beginning of my earlier speech: "no possible doubt whatsoever". Very few times have I heard those on the other side of this argument refer to that standard of proof. What I have heard seems to suggest that there is now some disposition to accept a different definition of what "no possible doubt whatsoever" means and what it refers to. I must confess that there is no doubt in my mind as to what it means; nor, I should have thought, would there be any such doubt in the mind of anyone who speaks English. That is what the standard of proof is and what is required in these cases.
I have heard nothing to challenge the finding of the Select Committee. In my amendment all I ask is that the House should accept it and not, as the Government have done, reject it.
In the course of the debate we have heard the views of some noble and gallant Lords. In case people feel that there is a general consensus among noble and gallant Lords, perhaps I may read two sentences from a letter that arrived in my post this morning from a former Chief of the Defence Staff, a Member of this House who is not able to be present this evening. He has given me permission to quote from his letter. He states:
"I have no personal doubt whatsoever and never have had since the day of the crash that the two air marshals, as you call them, were wrong".
He underlines the word "wrong" several times. At the end he asks this question:
"I wonder exactly who in the MOD is behind this dogged refusal to let the truth prevail and, more to the point, what drives him?"
That is the question asked by a former Chief of the Defence Staff, not by me.
It has been suggested that I should withdraw my amendment. I have no intention of doing so. We have had a long debate and I believe that it would be discourteous at the end of such a long debate not to test the opinion of the House and I intend to do so.
12.27 a.m.
On Question, Whether the amendment shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 65.

Division No. 2

CONTENTS

Acton, L.

Lane, L.

Alderdice, L.

Lindsay, E.

Attlee, E.

Liverpool, E.

Beaumont of Whitley, L.

Maginnis of Drumglass, L.

Bowness, L.

Mancroft, L.

Bridgeman, V.

Mayhew of Twysden, L.

Brightman, L.

Methuen, L.

Bruce of Donington, L.

Michie of Gallanach, B.

Chalfont, L. [Teller]

Monson, L.

Cope of Berkeley, L.

Norton of Louth, L.

Fitt, L.

Onslow, E.

Gordon of Strathblane, L.

Park of Monmouth, B.

Goschen, V.

Pearson of Rannoch, L.

Hooson, L.

Slim, V.

Jacobs, L. [Teller]

Thomson of Monifieth, L.

Kingsland, L.

Tombs, L.

Laird, L.

Warnock, B.

NOT-CONTENTS

Andrews, B.

Harris of Haringey, L.

Ashton of Upholland, B.

Hilton of Eggardon, B.

Bach, L.

Hollis of Heigham, B.

Bassani of Brighton, L.

Howells of St. Davids, B.

Blackstone, B.

Hunt of Kings Heath, L.

Bragg, L.

Irvine of Lairg, L. (Lord Chancellor)

Brooke of Alverthorpe, L.

Burlison, L.

Jay of Paddington, B.

Burnham, L.

Jones, L.

Campbell-Savours, L.

Judd, L.

Carter, L.

Lyell, L.

Chalker of Wallasey, B.

Macdonald of Tradeston, L.

Chandos, V.

McIntosh of Haringey, L. [Teller]

Cooke of Islandreagh, L.

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Craig of Radley, L.

Mackie of Benshie, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L.

Pitkeathley, B.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Falconer of Thoroton, L.

Richard, L.

Farrington of Ribbleton, B.

Roper, L.

Fyfe of Fairfield, L.

Sainsbury of Turville, L.

Gale, B.

Scotland of Asthal, B.

Gibson of Market Rasen, B.

Smith of Leigh, L.

Gilbert, L.

Symons of Vernham Dean, B.

Glenarthur, L.

Thornton, B.

Goldsmith, L.

Vincent of Coleshill, L.

Goudie, B.

Warwick of Undercliffe, B.

Gould of Potternewton, B.

Whitaker, B.

Grenfell, L.

Whitty, L.

Grocott, L. [Teller]

Williams of Mostyn, L. (Lord Privy Seal)

Guthrie of Craigiebank, L.

Hardy of Wath, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.

London Local Authorities Bill [H.L.]
A message was brought from the Commons that they concur with the resolution of this House of 31st October.

London Local Authorities and Transport for London Bill [H.L.]
A message was brought from the Commons that they concur with the resolution of this House of 31st October.
House adjourned at twenty-two minutes before one o'clock.