§ Mr. Deputy Speaker (Sir Michael Lord)
I must inform the House that Mr. Speaker has selected the amendment in the name of the Prime Minister.
§ David Davis (Haltemprice and Howden)
I beg to move,
That this House notes the House of Lords Select Committee Report on Chinook ZD 576, which concludes that 'the Air Marshals were not justified in finding that negligence on the part of the pilots of ZD 576 caused the crash' in the Mull of Kintyre on 2nd June 1994; and calls on the Government to exonerate the deceased pilots, flight lieutenants Jonathan Tapper and Richard Cook.This is an unusual motion for an Opposition day debate because it is sponsored on a cross-party—indeed, almost an all-party—basis. That is because it is virtually an apolitical subject: there is no ideology involved, and no party difference. Furthermore, the original decisions that we are seeking to put right were taken under a Conservative Administration. We are not, therefore, seeking to score political points. We are seeking simply to correct a miscarriage of justice that has gone on for too long. In the light of this cross-party approach—subject, of course, to getting a reasonable response from the Minister—I am not minded to press the matter to a vote tonight, but we shall wait and see.
At about 1759 hours on 2 June 1994, a Royal Air Force Chinook mark 2 helicopter, ZD 576, on a flight from Aldergrove to Inverness crashed into a cloud-covered hill on the west side of the Mull of Kintyre. The pilots, Flight Lieutenants Jonathan Tapper and Richard Cook, the other two crewmen, and the 25 passengers—all senior members of the Northern Ireland security services—were killed. The aircraft was completely destroyed in the crash and subsequent fire, and many of its component parts, including much instrumentation and the digital engine control unit, also suffered total destruction. Neither a cockpit voice recorder nor an accident data recorder was fitted. There were no eye witnesses to the crash, nor any radar trace.
Because of the absence of hard evidence of what happened on that fateful day, the investigating board made no finding of negligence on the part of the pilots. Nor did the two station commanders who reviewed those findings. Nevertheless, the two air marshals to whom the investigating board's report was submitted concluded that the pilots were negligent and that they failed to take appropriate action when approaching deteriorating weather near the mull. Furthermore, the air marshals maintained that the pilots voluntarily did not take the necessary action safely to avoid the land mass ahead of them. Both pilots were therefore found guilty of gross negligence. Not only did they lose their lives, but their reputations—and the peace of mind of their families—were destroyed. They were allowed no defence or appeal, and were denied the benefit of the doubt of the RAF board of inquiry. They were effectively convicted of causing the deaths of 27 other people.
RAF rules in force at the time provided that deceased air crew could be found negligent only when there was "absolutely no doubt whatsoever". That is a higher standard of proof than the "beyond reasonable doubt" required in criminal trials, and it is very much higher than 236 the "balance of probabilities" laid down for civil law. In practice, the "absolutely no doubt whatsoever" standard means that every other possible explanation of the crash must be positively disproved. The House of Lords Select Committee demonstrated that the air marshals had come nowhere near that level of proof.
Early in 1996, a fatal accident inquiry was held in Paisley sheriff court. The sheriff, Sir Stephen Young, conducted an inquiry involving evidence and submissions taken over some 16 days. The sheriff concluded: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 ZD 576 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.The sheriff was applying the lower standard of proof appropriate in civil law, namely the balance of probabilities. In other words, the air marshals had not even shown that their conclusion was probable, let alone certain. The Ministry of Defence refused to accept the judgment, on grounds subsequently shown to be flawed.
In November 2000 the Public Accounts Committee, under my chairmanship, reported on the MOD's acceptance of the Chinook mark 2 helicopter. The Committee considered that an engine-control software fault or other technical malfunction on the ZD 576 was a real possibility, and that there was not enough evidence to rule it out as at least a potential cause of the crash. In its view, it wasimpossible to prove gross negligence in the case of ZD 576".Again, the MOD refused to accept the judgment—a judgment that the Committee had reached unanimously, after extensive investigation by the National Audit Office.
§ Mr. Edward Leigh (Gainsborough)
In the Treasury minute that constituted a reply to the recommendations of my right hon. Friend's Committee, the Government claimed that there was no proof that the FADEC software system was at fault. I can buy that; but having made their assertion, the Government went on to say that because there was no explanation of why the helicopter had hit the Mull of Kintyre, the pilots must have been guilty of gross negligence. That is in paragraph 8 of the minute. It is surely a jump in the logic of the Government's argument, which I do not find very convincing.
§ David Davis
My hon. Friend—the new Chairman of the Public Accounts Committee—is entirely right. He has highlighted the point that the Government have always walked around the issue of requirement of absolute proof. The onus is on them to demonstrate that the FADEC was, in effect, perfect, which we know it was not. There are plenty of examples of its causing serious problems, cited in the report.
In July 2001, the House of Lords appointed a Select Committee to consider whether the finding of negligence was justified. Six weeks ago the Committee, consisting of five peers including four very distinguished lawyers and a very distinguished engineer, reported on the accident after hearing evidence for six months. Its members concluded unanimously that
the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash.237 The Government have said that they need time to consider the Select Committee's report, but Ministers' immediate response was that it coveredthe same ground with the same information".They said that there was
"no new evidence and no new facts".
§ The Secretary of State for Defence (Mr. Geoffrey Hoon)
Is the case being made by the right hon. Gentleman and the Opposition that the House, and indeed the Government, should simply accept the report of a Select Committee in the other place without further consideration?
§ David Davis
That was a timely intervention. I shall come on to exactly why we have concerns about the Government's response.
The ministerial response that there wasno new evidence and no new factsmisses the point. The required evidence never existed in the first place. The House of Lords report shows unequivocally that the so-called facts underpinning the air marshals' judgment were at best educated guesswork, and at worst demonstrably wrong.
Nevertheless, it was reassuring that the Government did not reject the report out of hand in the first instance. The same does not apply to other reports. That gave hope to the families of the pilots and to those who had campaigned for many years to see their names cleared—volunteer supporters, Channel 4 and Computer Weekly, for instance.
We now understand, however, that the Government plan to order a new simulation from Boeing. That points to the likelihood that they intend to find a reason for sticking to their finding of gross negligence. Such a course is wrong, in my view. The House of Lords Select Committee has demonstrated numerous flaws in the original Boeing simulation used to investigate the accident, and criticised the air marshals' treatment of the output of that simulation as fact.
The original simulation assumed a combined speed and rate of climb that have since been found to be unattainable—impossible in practice. It produced the wrong rotor speed, and it produced a ground speed during the final manoeuvre that was 11 knots higher than that measured by the ground-speed indicator. Perhaps most significant of all, it presupposed that before the crash the aircraft had been under control on a steady course and at a steady speed.
As well as depending on a mixture of dubious data and guesses about the Chinook's position, height and speed, a further simulation would not—indeed could not—deal with the possibilities of technical failure. Put simply, it would be another "garbage in, garbage out" exercise.
§ David Davis
I did answer the Secretary of State's question once, but he will have to wait until the end of 238 my speech to hear what I have to say about the simulator. I have some questions for him, which I hope that he will answer in his own speech.
I fear that the Government will maintain their pattern of behaviour in ignoring the findings of independent, expert and reputable bodies that have examined the accident in detail. They say that there is "no new evidence". That fails to take on board the fact that the House of Lords has shown that the original verdict was based on fallacious or non-existent evidence.
§ Mr. David Rendel (Newbury)
It has already become clear that the original decision of the air board was changed by the air marshals when they made their final decision, without their having any different evidence to consider. If it is possible for a decision to be changed on the basis of judgment as to where the blame lay, with no new evidence, why is it not possible for the Government to change a decision on the basis of "no new evidence"? I agree with the right hon. Gentleman that there is probably plenty of new evidence, but even if there were not there would be no reason for the Government to stick to their decision.
§ David Davis
The hon. Gentleman is right. He was also a member of the Public Accounts Committee at the time of the discussion, so he is familiar with the Government's problem of "no new evidence". I shall say more about that later.
Let us consider the course of events during those fateful days in 1994. On the day of the last flight of Chinook ZD 576, after obtaining weather reports Flight Lieutenant Tapper decided that the flight to Inverness would be a low-level sortie flying under visual flight rules, or VFR, and intimated that he was not intending to fly under instrument flight rules—IFR. Indeed, flying under 1FR in the vicinity of the mountains to the east of Ballachulish and Fort William would not have been permitted because of icing restrictions. Flight Lieutenant Tapper therefore selected a route that included flying towards the Mull of Kintyre lighthouse, which was programmed into the Chinook's computerised navigation system as way point A, and from there to Corran on Loch Linnhe, programmed as way point B. According to the SuperTANS computer, the Chinook was a mile from the lighthouse when the crew selected the next way point.
The original air marshals' criticism of the two pilots was based on the assertion that they had voluntarily flown over the Mull of Kintyre at too low a rate of climb in instrument conditions. But why would an experienced helicopter crew, immediately after selecting a pre-programmed visual way point, suddenly agree not to turn on to it, switch to instrument flight rules, which they had ruled out at the pre-flight briefing, and fly straight on to cloud-covered high ground which it knew to be there? Special forces helicopter crews exercised regularly in that area and were extremely familiar with the landscape and the weather conditions associated with it.
When the matter was debated in Westminster Hall, the Under-Secretary of State for Defence said:they flew on, contrary to instrument and visual flight rules. The evidence is that they were already too close to the cloud-covered mass of the mull and were travelling too low and too fast"— [Official Report, Westminster Hall, 27 June 2000; Vol. 352, c. 174WH.]239 That is the basis of part of the accusation for gross negligence, but it does not add up. On what evidence was the ZD 576 "too low" at way point change? The only concrete data were an eyewitness account from a yachtsman, Mr. Mark Holbrook, who saw the helicopter at the height of between 200 and 400 ft about two miles from the mull. The helicopter was clear of cloud and in sunlight. That is consistent with the crew's visual flight rules flight plan, which was seen and described as being "thorough and professional" by the board of inquiry. There is no case for the aircraft being too low.
§ Mr. John Wilkinson (Ruislip-Northwood)
May I refer my right hon. Friend to the logbook entry of the Sea King crew members who went to the scene of the accident? They made it absolutely clear that the weather around the lighthouse was nowhere near visual flight rules. In fact, they had to grope their way in at 100 ft with radar assistance, and they spoke of sucker holes, which is just the sort of thing to which the yachtsman referred. The cloud conditions change very rapidly in that kind of terrain. One may get a fleeting glimpse of an aeroplane; it does not mean that it is in visual flight rules.
§ David Davis
I recognise my hon. and gallant Friend's experience in this area. The Sea King went after the accident. It is well known that the weather changes in that area, a point well understood by the special forces crew that flew there, but I will come back to that point.
On what evidence was ZD 576 "too fast" at the way point change?
§ Mr. Menzies Campbell (North-East Fife)
I do not know whether the right hon. Gentleman intends to leave consideration of Mr. Holbrook's evidence, but if he has carefully examined the report, as I am sure he has, he will know that at page 19, paragraph 67, the conclusion of the Select Committee of the House of Lords was to say:
"We had no hesitation in accepting him as a reliable and convincing witness."
§ David Davis
The right hon. and learned Gentleman is exactly right. One of the problems was that the Royal Air Force appeared to write off Mr. Holbrook's evidence early on and to view him as a fallible witness, for reasons perhaps touched on by my hon. and gallant Friend the Member for Ruislip-Northwood (Mr. Wilkinson).
The air marshals tried to tell the House of Lords Committee that the Chinook ZD 576 was going so fast that it would not have been able to turn in time to avoid the cliffs, but that was based on false assumptions. First, it assumed that the aircraft was travelling at the ground speed of 174 knots used by the Boeing simulation. There is no basis for that assumption.
Nobody knows the speed at the way point change. The tail wind was about 20 knots, and the Chinook normally cruises at 130 knots. According to the inquiry, ZD 576 crashed at 150 knots ground speed but that does not tell us the speed at the way point. Mr. Holbrook, the yachtsman, estimated the speed of the Chinook when he saw it at about "60–80 knots".
240 The Lords Committee also concluded, based both on Mr. Holbrook's statement and expert witnesses,that the crew had probably seen the land mass at or before the time the way point was changed.So the witnesses' evidence points to the Chinook flying in visual flight conditions, at the right height, at a lowish speed. The Lords Committee criticised the board of inquiry for not paying more attention to the yachtsman's evidence.
§ David Davis
It is probable but the problem is that we are dealing here with requirements of absolute proof. However, even if the aircraft behaved perfectly properly at the way point change, it is entirely possible that., immediately after the way point change, that ceased to be the case. Flight jams are well known to occur. Evidence given by the squadron test pilot of the Chinook suggests that flight jams occur very often on change of direction. That would have occurred immediately after, or within seconds of, a way point change.
§ Mr. Wilkinson
My right hon. Friend will recall that the heading change was something in the order of 13 deg, a minuscule injection of bank and heading change. If there had been something wrong with the aeroplane as it went across the Irish sea, the crew would have aborted the sortie, changed the flight profile or issued a pan call—an emergency call. It would have been perfectly plain. They did nothing of the kind, so the assumption must be that they pressed on in the knowledge that all systems were working perfectly. They had good time to put a call into military air traffic Scottish region.
§ David Davis
I am afraid that the use by my hon. and gallant Friend of the word "assumption" rather blows the case. We cannot make assumptions on this. The level of proof required is no assumptions. Two witnesses who spoke to the House of Lords Committee—witness A., a special forces pilot who could not be identified, one of the most decorated pilots around today and certainly very high on experience of Chinooks, and Squadron Leader Burke, who was the squadron test pilot on the aircraft— both recognised intermittent faults that were brought on in erratic, unpredictable ways, and a small change of direction could well make that change. I will come back to the point later, but the simple fact is that they both thought that the most likely outcome was a control jam after the way point.
The Lords Committee found that there was no evidence to back up the data used to estimate the Chinook's height, speed, position and course atany time prior to impact",so the whole approach of the air marshals was based on a lot of assumptions.
The MOD's assumption that the way point change was made when the aircraft was some 600 m from the cliff is based on information retrieved from the Chinook's computerised tactical area navigation system, also known as TANS or SuperTANS. That system was heavily damaged in the crash.
241 The RAF used TANS as the basis for its reconstruction of the final seconds of the flight claiming that the data used werefacts based on clear evidence".One of the air marshals, Sir John Day, used this information tobuild up a rudimentary accident data type recorder picture of the last 20 seconds of flight".The Lords Committee dismissed these claims as "hypotheses and assumptions". Further, according to the manufacturer, the computer was never designed to give historical data. In addition to that, it had hit a mountain at 147 knots, or 170 mph, and then burned. Who would believe any information garnered from that computer to be 100 per cent. accurate? Even given that, that computer system was well known to he subject to errors.
There is an ironic example. On 13 July 1995, a Chinook mark 2, the same sort of Chinook, was tasked to perform an overflight of Flight Lieutenant Jonathan Tapper's memorial. Crew members were in visual contact with the ground and they knew when they were precisely over the memorial. The TANS on that aircraft indicated that the aircraft was 2 nautical miles away from the memorial—the system "believed" it was some 2 nautical miles away from the aircraft's actual position, so the system is certainly fallible. Again, I remind colleagues of the level of proof required.
The House of Lords Committee therefore threw out the "wrong place, wrong speed, wrong height" argument of the air marshals. That leaves the problem of how the Chinook came to crash into the mull. Was there a technical fault that made the aircraft difficult or impossible to control, which was implicit in the Secretary of State's questions to me earlier?
Under the rules of "absolutely no doubt whatsoever", the MOD is required to eliminate any such possibility. Sir William Wratten, the senior air marshal, has stated that the RAF board of inquiry found a "total absence" of any technical problem that could have caused the crash. In a crash of this destructiveness, it is entirely possible that all evidence of a control problem could be destroyed. Actually, there is evidence pointing to at least three possibilities: an engine control problem, a control jam and a hydraulic system problem. Furthermore, the investigating board did not rule out a distracting technical fault.
In particular, the board noted that the Chinook had been experiencing engine control system—known as FADEC—malfunctions, including "undemanded run-ups". That technical phrase basically means sudden surges of power that could destabilise the helicopter. The board noted also that anunforeseen technical malfunction of the type being experienced on the Chinook … remained a possibility that could not be discounted.Again we must remember the requirement for the level of evidence.
It has also emerged that, at the time of the crash, the MOD was suing both Boeing and Textron Lycomingthe manufacturers of the Chinook and its engines, respectively—because of faulty test procedures and a design fault in the aircraft's FADEC software. Malcolm Rifkind has said that if he had known this and the other technical problems at the time of the investigation, he would not have supported the verdict of the air marshals. He was the Secretary of State at the time.
242 The RAF's board of inquiry did not properly consider either of these facts. Indeed, it neglected to take evidence from Squadron Leader Bob Burke, the vastly experienced Chinook test pilot, and Malcolm Perks, the technical expert who had spent many years working in the field of FADEC, often for the MOD. Both men gave evidence to the Lords inquiry about the FADEC system and the possible flight control problems that it could cause.
After the accident, the investigators found that a number of components in the Chinook's hydraulic flight control systems had become detached. The air accidents investigation branch stated that the possibility that these components
had detached prior to the accident could not be dismissed.In fact, three weeks before the accident, this same Chinook suffered an undemanded flight control movement caused by detachment of one of the same set of components. This and its dire flight safety implications were noted in an engineering report made by the helicopter's ground crew.
§ Mr. Frank Cook (Stockton, North)
Is it not true that the flight crew on that day had sought an alternative aircraft to make the journey?
§ David Davis
That is right. There is a trail of concerns about the aircraft, expressed particularly by Flight Lieutenant Tapper.
On the question of control jams, two expert witnesses—whom I described earlier—expressed the view that the most likely cause of the accident was a jam of some kind affecting the control of the aircraft, perhaps arising from detached hydraulic system components and arising immediately after an attempt to change direction in the aircraft.
Finally in terms of possible causes, in June 1997 a US Army report into Chinook safety considered an incident when a Chinook had barrel-rolled at about 1,100 ft and righted itself at about 250 ft. Following the incident, the helicopter was completely stripped down. No cause for the incident could be established. Let me emphasise this: a Chinook helicopter went out of control and barrel-rolled to within a second or so of total destruction, and not one single solid piece of evidence was found about the cause. Hydraulic contamination was thought to be most likely. The AAIB also discovered metal contamination in the same part of the Chinook ZD 576's hydraulic system.
Following the accident, the rudder pedals were found at 77 per cent. of full travel. This is an extreme position—almost full left rudder. Expert witnesses told the Lords Committee that such "an enormous rudder input" was unthinkable at high speed. This, combined with other control inputs found, suggested anerratic flight path typical of a partial control loss.Both Sir John Day and Sir William Wratten accepted that the possibility of a control jam or engine malfunction could not be disproved. Again, I remind the House of the required level of proof.
In conclusion, there is a lack of evidence pointing to reasons why the pilots should have decided to change course and switch to instrument rules. Indeed, all the evidence indicates that they had no reason to do so. So why did the helicopter fly on into the mull? Well-known 243 technical problems and episodes suffered by this very helicopter must surely point to at least the possibility that technical problems caused or contributed to the crash.
However, the MOD has given no benefit of doubt in either of these key aspects, even though many problems and doubts have been raised. In short, it has not been established to the required level of proof that it was the voluntary action of the pilots which caused the aircraft to fly into the hill. This is precisely why the Government should set aside the verdict of gross negligence.
If the Secretary of State is not willing to do that today—it would appear that he is not—I would like him to answer three questions about his proposed new simulation that will help his thinking in making his final decision. First, where will he get the new input data for his new simulation, since the old simulation failed partly because of a lack of inputting? Secondly, how will the simulation take account of any possible control system malfunction? The other one did not. Finally, will he see that any simulation is carried out by an independent body, and not by Boeing, which has a clear commercial interest in the outcome of this case? Will he also ensure that an independently monitored flight test of a representative RAF Chinook is carried out to verify that the simulated flight manoeuvres can be achieved and are not impossible, as was the case in his previous so-called evidence?
I hope the Secretary of State will take seriously the House of Lords refutation of the air marshals' judgment and the standards of proof required. He must accept that this is a matter of natural justice and see fit to clear the pilots' names. This is now a matter of honour, not just for the pilots but for the MOD itself.
§ The Secretary of State for Defence (Mr. Geoffrey Hoon)
I beg to move, To leave out from "House" to the end of the Question, and to add instead thereof:
notes the House of Lords Select Committee Report on Chinook ZD 576; further notes that the Government is currently studying the report; and looks forward to the Government's promised full and detailed response to the House of Lords.With permission, Mr. Deputy Speaker, I should like to respond to this evening's debate on the tragic RAF Chinook crash on the Mull of Kintyre in 1994. I must say that it is perhaps slightly surprising, in the light of events elsewhere, that the Opposition chose to debate this subject today. They are well aware that the Government are still carefully considering the House of Lords Select Committee report on the crash. It is therefore difficult at this stage to add to what has been said previously. The Government have up to six months to respond to the report, and we certainly aim to do so before that deadline is reached.
The right hon. Member for Haltemprice and Howden (David Davis) set out the facts and I do not intend to repeat them. He did skate over one point, in response to a question from the hon. Member for Newbury (Mr. Rendel). The board of inquiry was entirely properly constituted and reached its conclusions as a properly constituted board of inquiry would be expected to. The right hon. Gentleman should accept that there is no suggestion of division in the way in which it went about reaching its conclusions.
244 Everyone recognises that what happened that evening has cast a very long shadow. It has had a devastating impact on the lives of the 29 families of those who lost loved ones in the crash. I know that I speak for the whole House when I say that I am completely sympathetic to the concerns of the families of the dead pilots; I also speak for the MOD when I say that. I entirely understand their wish to clear their relatives' names, but I must emphasise that we must also remember with sympathy and understanding the relatives of the others who so tragically lost their lives in this accident. This issue has touched all of those who have had to deal with it over the past seven years, including a series of chiefs of staff and Defence Ministers representing both sides of the House.
§ Dr. Julian Lewis (New Forest, East)
Has MOD policy changed in either of two respects? First, in future, would the MOD ever approve the concentration of such a large number of key intelligence personnel in a single aircraft? If not, that suggests a vested interest in blaming the pilots. Secondly, is it true that a decision has been made that, in future, in circumstances even of this sort, there would be no question of the MOD blaming deceased pilots? If the rules have been changed because of the case of these two pilots, is it not monstrously unjust that the two pilots themselves, who have led to the change in the rules, should nevertheless continue to carry the blame in perpetuity?
§ Mr. Hoon
Clearly it was not sensible for so many highly specialised people to be carried on a single aircraft, but I cannot accept the hon. Gentleman's implication that there is a deliberate conspiracy to cover up the details simply to protect those who were responsible for the decision in the first place. I am sure that if he thinks about that for a second, he will realise that that is not a proper imputation to make at this stage.
§ Mr. Hoon
Perhaps my hon. Friend will allow me to respond to the hon. Gentleman's second point.
The hon. Gentleman rightly mentioned the present rules, which certainly have changed. They have not necessarily changed as a result of this specific unfortunate incident, but they have changed. However, that creates a difficulty for the hon. Gentleman and those who support this campaign. Not only do they need to look at the evidence in the light of the information that they have today but, in my view, they have to put themselves in the position of members of the board of inquiry at the time, applying the standards and rules that they had to apply. It is all very well rewriting history and saying that it is possible to look at historic events in a different way in the light of our experience and current practice, but the only fair way of dealing with this is to put oneself in the position of the air marshals and the board of inquiry, who were subject to the relevant rules of the Royal Air Force at the time.
§ Mr. Dalyell
Before leaving the problems of previous Secretaries of State for Defence, would not my right hon. Friend have been understandably annoyed if he had not been told that legal proceedings involving the manufacturers were taking place? What does he say to 245 Malcolm Rifkind, who has expressed public annoyance that he was not told? It is not exactly the best way for the Ministry of Defence to treat its then Secretary of State.
§ Mr. Hoon
Malcolm Rifkind is not here and it would perhaps be unfair to respond fully to that point. However, I agreed to see him when he wished to make representations about this matter. I hope that I am fair to him when I say that the conclusion of our conversation was to the effect that were he to be in the same position again he would not have reached the same conclusion that he reached originally. That is a perfectly proper judgment for him to reach, and I think that it is a fair account of the way in which he now puts the case. Nevertheless, when he considered the matter in the light of whatever evidence was before him at the time, he reached a different conclusion. As I said, I have discussed the matter with him and nothing that he said to me at the time persuaded me that there was at that stage any need to reopen the matter.
§ Mr. Crispin Blunt (Reigate)
I was Malcolm Rifkind's special adviser at the time, and I can assure the right hon. Gentleman that it would not have been the desire of the then Secretary of State in those circumstances to revisit the judgment of two air marshals sitting on the board of inquiry unless there was evidence for doing so. He quite properly supported the opinion of the air marshals. Since there has been new evidence, he has revised his opinion. The Secretary of State is in precisely that position.
§ Mr. Hoon
I have always made it clear on behalf of the Government that were there to be new evidence I would consider reopening the matter. That is why I believe it necessary to look very carefully at the report published by the Select Committee in the other place so that we can reach a proper result on the basis of its analysis of the facts and the interesting technical views that it expressed at the time. Again, that is why I find it slightly surprising that the Opposition appear to believe that the position of the Government and the House ought to be to accept the views of a Select Committee in the other place without any further consideration. I made that point to the right hon. Member for Halternprice and Howden, and notwithstanding the suggestion that he had answered me, I am afraid that he did not.
§ Mr. John Redwood (Wokingham)
The Secretary of State implied that the interests of the relatives of the deceased passengers were somehow different from those of the relatives of the deceased pilots. Surely they are entirely the same. All relatives of the deceased have suffered greatly and want to make sure that the Secretary of State gets to the bottom of the matter. My right hon. Friend the Member for Haltemprice and Howden (David Davis) is simply saying that there are reasons for doubt. Could not the Secretary of State give us a little hope by saying that he accepts that there are unanswered questions that he must take seriously when responding to the House of Lords inquiry?
§ Mr. Hoon
That is precisely why it is necessary to conduct a further examination of the report, of the basis of the report and of the evidence on which the board of inquiry relied. That is what the Government are doing. The difficulty I have this evening in responding to the 246 points made by Opposition Members—certainly from the Opposition Front Bench—is that they do not appear interested in that further analysis or consideration. They appear to want simply to accept the recommendations of a Select Committee in the other place without further consideration. Unless I have misread the motion, that seems to be what the right hon. Member for Haltemprice and Howden has been saying this evening.
§ Mr. Martin O'Neill (Ochil)
Will my right hon. Friend share with us some of the ways in which his Department will look afresh at the issue in the light of the Jauncey report? The report placed a great deal of emphasis on the evidence question and what the weight of evidence should be. I know that my right hon. Friend is a distinguished lawyer; is he likely to seek advice from the Attorney-General or the Advocate General? Many of us are worried about this being an in-house MOD response, and believe that the whole Government machine should be involved.
§ Mr. Hoon
I will deal with both those points in due course. Before that, I should like to say something about the critical comments made by the Select Committee in the other place about Air Marshals Sir John Day and Sir William Wratten. Whatever views exist as to their conclusions, I hope that the House will accept that the air marshals' decision was taken neither lightly nor easily. The judgment was taken with the utmost care, the fullest consideration of all the available evidence and the application of the highest standards of professionalism and airmanship.
The air marshals are experienced and highly professional senior officers, both experts in their field. Sir John Day, in his evidence to the Committee, described it as the most difficult decision that he has ever had to make in his career. He has also said that it is the decision that he thought most hard about, being only too well aware of the immense consequences of what he believed his professional judgment required him to say. Nobody would wish to find someone negligent, especially someone who has died, unless they were convinced beyond any doubt.
In that regard, it was extraordinarily disappointing to hear Lord Chalfont on the radio this morning suggesting that the problem was that senior members of the Royal Air Force were "reluctant to change their minds and to appear to lose face." In my view, that is unfair, unnecessary and thoroughly disrespectful to those who have risked their life on behalf of this country.
I cannot this evening—nor should anyone reasonably expect me to do so on behalf of the Ministry of Defence—give a thorough examination of the various facts raised by the right hon. Member for Haltemprice t.nd Howden. To do so, inevitably, as his three questions indicate, would go so far as to reveal a conclusion that I am simply not in a position to give. It would not be right and proper, on behalf of a Government who are studying this Select Committee report thoroughly, to respond in anything like the detail that he has requested. He has set out his views clearly on more than one occasion, and he is unlikely to change them. However, it is right for the Government to consider carefully what has been said.
On the points made by my hon. Friend the Member for Ochil (Mr. O'Neill), I have sought further advice from counsel, to which I shall pay careful regard. We have also 247 asked Boeing to undertake a review of its original analysis of the last seconds of the Chinook's flight, including a full simulation of FADEC—the full authority digital engine control system. This morning, the campaign, in the person of Lord Chalfont, suggested that that was a totally irrelevant and pointless exercise. I would be interested to know whether the right hon. Member for Haltemprice and Howden believes that to be the case.
§ David Davis
My earlier point was that the flaw in the air marshals' argument in the first instance was the heavy reliance on that simulation. All it amounts to is an electronic guess; it is a postulation of what might have happened. Even if we accept that the Secretary of State cannot comment on the underpinning of the re-analysis— I do not accept that, but let us take it as read for the moment—surely he can tell us that independent oversight of the re-run of the simulation is possible. We should not simply leave it to Boeing, which is, after all, parti pris in this exercise: it has an interest in the reputation of its helicopter. No one would accept a simulation or evidence that depends solely on those who have something to gain from the continuance of this miscarriage of justice.
§ Mr. Hoon
I am prepared to make the evidence produced in the light of the remodelling process available for independent analysis. I shall certainly make it available to the right hon. Member for Haltemprice and Howden, and others in the campaign will be able to subject it to appropriate scrutiny.
I am interested in a fact that the right hon. Gentleman rather skated over. One purpose of the process is carefully to examine the speed of the aircraft at the relevant time. He suggested—I am prepared to be corrected if I am wrong—that there was no evidence whatsoever of the aircraft's speed. However, if only on a basic mathematical assessment of the time taken in the journey's course, it is possible to estimate the likely speed simply by dividing the time taken by the distance travelled. That will provide an estimate of the average speed during the journey—that is not, I accept, conclusive evidence of the aircraft's speed at the point in question, but it is part of the purpose of the modelling analysis.
§ David Davis
That argument has been tried before, but the House of Lords rebutted it on the grounds that it was dependent on averages. The aircraft travelled at about 150 knots from Belfast, Aldergrove to the way point, but that is not to say thateit did not slow down when it was looking for the reference point of the lighthouse. We simply do not know: that is the point. The level of evidence that we need is absolute certainty—not hypothesis, averages or a convenient guess that fits the case.
§ Mr. Hoon
I am not sure that I was right to give way to the right hon. Gentleman. I had just made precisely that point. Perhaps he feels the need to embellish it for me, but I pointed out that it was possible to provide some evidence of the aircraft's speed, but that it was not conclusive regarding the speed at the way point change. Nevertheless, it helps us to form a judgment about what 248 took place. I noticed that he did not correct my suggestion that he had earlier said that there was no evidence whatever.
§ Mr. James Arbuthnot (North-East Hampshire)
My right hon. Friend said that there was no evidence of the speed at the way point change.
On the simulation that the right hon. Gentleman is recommissioning, does he accept the point raised by Tony Collins, a journalist from Computer Weekly, that modern aircraft are so complicated technically that it is impossible for the purchaser, or anyone but the manufacturer, precisely to understand what the computer code has done. Does the right hon. Gentleman accept that the same would apply to simulations in circumstances as unbelievably complicated as those of this crash?
§ Mr. Hoon
The right hon. Gentleman makes a reasonable point. My only reservation about agreeing completely is that I have seen so much nonsense written about the subject in Computer Weekly. Some evidence may be acceptable, but the way in which that journal hysterically pursues the subject does not give me cause to accept anything that it says at face value. I hope that the right hon. Gentleman will forgive me for not accepting an assertion by a representative of Computer Weekly at this stage.
It is important for the Government to have the best possible evidence. I hope that all right hon. and hon. Members accept that. The modelling tool available at the time did not include FADEC. The engineers who conducted the original simulation factored in the known FADEC performance criteria. We have asked Boeing to undertake more advanced modelling by including the FADEC flight system. I want to be confident that we have the most accurate information about what happened in order to make the most informed judgment. It is difficult to understand how that approach can be criticised.
§ Mr. Robert Marshall-Andrews (Medway)
Before the Secretary of State leaves the findings of the air marshals, he has twice referred to findings of negligence but, as I understand it, the test applied and found was one of gross negligence. That means a voluntary course of action taken deliberately at the time. I ask my right hon. Friend to apply himself to this question. If I am right, that test is indistinguishable, in truth, from the test of recklessness applied in criminal law. If that is so and the burden of proof applies in that sense, how, in view of the expert evidence, could they possibly have arrived at that conclusion?
§ Mr. Hoon
My hon. and learned Friend makes a point that I have made myself about the legal test applicable to the case. It is interesting to read the House of Lords Select Committee report, in which, notwithstanding the legal distinction of some of the participants, there appears to be confusion between recklessness and negligence. Without giving the House a legal lecture, which it does not need at this stage of the evening, I believe that the expression "gross negligence" is not particularly helpful, which is why the rules that apply to boards of inquiry have been changed since this case. That still leaves us with my 249 earlier point: that in order to do justice to the case, it is necessary to apply the rules that faced the board of inquiry at the relevant time.
§ Mr. Leigh
I am grateful to the right hon. Gentleman, who is a reasonable man. Does he accept the comment made by the Public Accounts Committee, which develops the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews)—thatthe burden of proof of 'no doubt whatsoever' requires that gross negligence be positively identified as the cause of the crash, not simply that it be used as the default explanation when the Department cannot find an alternative"?The Secretary of State nods. Does he agree?
§ Mr. Hoon
I certainly accept that it is necessary to examine carefully the legal basis on which the board of inquiry reached its conclusion. I have just criticised the concept of gross negligence as being difficult for most lawyers to understand and apply—a difficulty that the Select Committee encountered. I have asked for further legal opinion in order properly to satisfy myself that the right legal approach was adopted at the time. As I said, it is important that any analysis is consistent with the rules that the board of inquiry had to follow.
I have given way on every occasion that I can in this debate. The Government have every intention of producing a full response as soon as possible. We shall certainly do so within the six-month period allowed for replying to such reports, but that should not be understood as delay. Rather, it is an acknowledgement that this is an extraordinarily complex matter. It is right and proper that the report is fully and carefully assessed and that, where appropriate, further detailed technical work and investigations are undertaken. We naturally want to have the best possible advice, but that inevitably takes time. I apologise to right hon. and hon. Members for the fact that I cannot say more this evening. To that extent the debate is bound to disappoint those who initiated it.
§ Lady Hermon (North Down) rose—
§ Lady Hermon
I thank the Secretary of State for giving way.
Will the right hon. Gentleman reflect on the conclusion of the report of the Select Committee on Defence in 1998? It noted that "great sensitivity" was required in investigating fatal accidents in the armed forces. Will he please explain how taking a further six months shows "great sensitivity" to those involved, especially the widows who are still left with doubt and with stigma attached to the reputation of the two flight lieutenants?
§ Mr. Hoon
In order to reach a properly considered result it is necessary to do the Select Committee, the House and all those who have an interest in that tragic incident the courtesy of carefully considering their arguments. That is what the Government intend to do; it is certainly what I have been trying to do ever since I assumed my current responsibilities. I am sorry if a wait of a few more months before the Government reach their conclusions appears insensitive in any way. 250 I do not accept that for a moment, however. We want to examine the report with appropriate care, to consider the factual evidence on which the Committee relied, to find new evidence if any can be found and to subject to proper analysis the Committee's technical conclusions and the legal basis for its report. I acknowledge the comment of the right hon. Member for Haltemprice and Howden that this is not a party political issue, so I hope that the whole House agrees that it is only appropriate that the Government have the opportunity to reach those carefully considered conclusions.
§ Mr. Menzies Campbell (North-East Fife)
I begin by commending the right hon. Member for Haltemprice and Howden (David Davis) and his colleagues for allowing part of a day that was within their gift to be given over to discussion of this topic. I confess that I was not optimistic enough to believe that putting my name to the motion would mean that the Secretary of State would come to the Dispatch Box and concede that the motion should be passed unanimously. However, this opportunity affords us the chance to engage in the merits of an issue that causes great concern on both sides of this House and of the other place.
As has already been pointed out, this is not—nor should it be—a party political matter. The Select Committee, under the leadership of Lord Chalfont, was drawn from all parties on both sides of the House. The Secretary of State may have had some criticism of Lord Chalfont, but it is fair to say that the noble Lord has certainly, with a high degree of commitment, tried to ensure that these matters are properly considered in the House and in the other place.
I do not for a moment challenge the integrity of Ministers past or present or of the senior officers of the Royal Air Force who were engaged in the decision. I make no allegations whatever of bad faith. As it happens, I know Sir William Wratten and Sir John Day personally. However, I believe that an error of judgment has been made in this case, and I am left with the suspicion that, had proper legal advice been made available to the board of inquiry in the later stages of its consideration, it is highly unlikely that it would have reached the conclusion that now exercises so many of us. I hope that the reform of boards of inquiry to which the Secretary of State has referred will afford the opportunity for those charged with the difficult task of determining such matters to take legal advice of the highest quality.
As I believe that an error of judgment has been made, there has, in turn, occurred an injustice. That injustice should be put right. Parliament exists for the redress of grievances and the families of the two pilots certainly have a grievance. They are entitled to seek to persuade the House to put that right on their behalf. In saying that, I do not for an instant ignore the feelings and emotions of the relations of the other two deceased crewmen and of the 25 passengers. However, I venture to offer this thought: I doubt whether any of them would derive comfort from the notion that a miscarriage of justice had been committed and allowed to persist. On several occasions, I have received direct communication from the relations of passengers—although not in every case—saying that they supported, albeit not publicly, the efforts being made to try to deal with a matter that, in the minds of so many, has created an injustice.
251 The Government's position—frequently repeated and rehearsed by Ministers at the Dispatch Box and on television, radio and elsewhere—is that if there is new evidence they would be prepared to open the inquiry, but if there is no new evidence, there is no justification for reopening the inquiry, so the original finding stands. If that position is to be maintained, it can be maintained only in the teeth of the findings, first, of the fatal accident inquiry and, secondly, of the report of the Lords Select Committee.
That position assumes that the original finding is unchallengeable because it was infallible. We thus have to look at the standard of proof that was required—yes, with the benefit of hindsight; but also with a rigorous intellectual approach.
§ Mr. David Trimble (Upper Bann)
Before the right hon. and learned Gentleman proceeds with that thought, may I take him back to the Government's view that the matter should be reopened only if there is new evidence? Is it appropriate to maintain that position, given the analogy with criminal convictions? The law has been changed to allow those cases to be reopened when there is no new evidence but when there are grounds for believing that a mistake has been made. Should not the Secretary of State's approach to boards of inquiry be analogous to that now adopted by the law with regard to criminal convictions?
§ Mr. Campbell
As well as being the leader of his party, the right hon. Gentleman is by profession a lecturer on law—
§ Mr. Campbell
Once a lecturer on law, always a lecturer on law; I am happy to accede to the right hon. Gentleman's proposition.
The original inquiry was—at least generically—a tribunal. It was necessary for it to gather and consider evidence, to reach conclusions on that evidence and then to exercise a judgment. As the Secretary of State rightly said, when we consider the quality of that decision we must do so on the basis on which it was taken and in the light of the rules applying at the time.
In parenthesis, I have always wondered whether, if an action of judicial review had been taken within the conventional time limit for bringing such actions, such an action would inevitably have succeeded. I have never received sufficient answer on that point.
Like those charged with the responsibility of the board of inquiry, however, we have to consider the matter against the background of the rules then applying. At the heart of that consideration were the rules of the Royal Air Force, which required absolutely no doubt. It is instructive to read paragraph 14 of the Select Committee's report—those words have already been echoed to some extent. The paragraph in the report stated that paragraph 9 of the rulesmanded a particularly high standard of proof, higher than is required of the prosecution in a criminal case in the United Kingdom (`beyond reasonable doubt'), and much higher than is required in
252 civil litigation Con the balance of probabilities'). It was no doubt set so high because deceased aircrew are no longer available to offer their own account of events. That is to say, it was provided as a protection for deceased aircrew. The report continues:We consider that it requires all other plausible explanations for the crash to have been positively excluded. If any such explanations remain possibilities, the standard of proof has not been met.That effectively means that someone could be convicted of murder in England and Scotland on a standard of proof lower than that necessary to be achieved before any finding not of gross negligence, but of negligence, could be established.
Having considered that, let us remind ourselves of the fact not only that that standard was considered by the Select Committee, but that in determining what his conclusions should be in the fatal accident inquiry, the sheriff, Sir Stephen Young—to whom I shall return in a moment—was unwilling, on a balance of probabilities, to hold that the MOD explanation had been established.
These are human affairs, and it is inevitable that emotions will play a part. I believe that it is inevitable that those campaigning for the pilots will find 100 per cent. objectivity difficult to maintain; equally, those intent on sustaining the original decision may be similarly disadvantaged. That is why we must try to divorce ourselves from those emotional considerations and look outside and elsewhere.
I have already referred to Sheriff Sir Stephen Young, who considered 16 days of evidence, when all the relevant interests in the crash were represented by counsel or solicitors and there was the opportunity for cross-examination. Yet despite all that, on a balance of probabilities—the appropriate standard in a fatal accident inquiry, which in Scotland is roughly, but not entirely, equivalent to a coroner's inquest in England—the sheriff was unable to support the MOD conclusion. To those hon. Members who have not yet done so, I recommend reading that judgment, because it is as close an analysis of the issues involved as one could hope for, and it reflects extremely favourably on Sheriff Sir Stephen Young—a reflection that is also corroborated by references in the Select Committee report.
The second external point of reference is the House of Lords inquiry—chaired by Lord Jauncey, one of Scotland's most eminent judges of recent times—and composed of four, plus himself, independently minded peers. Against that background—first, of the fatal accident inquiry and, secondly, of that report—how on earth can anyone say that the standard of absolutely no doubt whatever can have been achieved?
I have heard it said, anecdotally, that the unwillingness of those with initial responsibility to accept a different conclusion may be based on a determination to maintain the integrity of the inquiry system or, indeed, the chain of command. As for the inquiry system, as the Secretary of State has already told us, the regulations have been changed, but as for the integrity of the chain of command, of course, that is important. Anyone with any knowledge or understanding of the anned services knows that the integrity of the chain of command is essential for good order and discipline and that it must be respected; but how much more is the chain of command likely to be respected if those involved are sufficiently confident to recognise when an error of judgment may have been made and should be corrected?
253 In the conduct of public affairs—perhaps no more frequently than for those Ministers who occupy the Treasury Bench this evening—the exercise of judgment is commonplace. I think no less of those who acknowledge that they have made an error of judgment and are anxious to put it right. In particular, I have in mind Sir Malcolm Rifkind, with whom I have talked about this matter and whose views are now well known as a result of the interviews that he has given on radio and television, and of at least one article that he has written in a national newspaper. I believe that—if he catches your eye, Madam Deputy Speaker—the right hon. Member for North-East Hampshire (Mr. Arbuthnot), who was also a Minister at the MOD at the relevant time, may have something to say about what he now believes, compared with the part that he played in the original decision.
The last paragraph of the Select Committee report is as succinct a statement as one could possibly hope for: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'.The last sentence reads:
We shall never know.That paragraph and, indeed, the whole report make it clear that we are in a climate of uncertainty. In a climate of uncertainty, how can the original decision possibly stand?
§ Mr. Martin O'Neill (Ochil)
I am pleased to follow the right hon. and learned Member for North-East Fife (Mr. Campbell), as I agree with much of what he said and with the way he addressed the issue this evening. This is a difficult issue, and I am not altogether certain that the tactic of holding this debate tonight was the best one. There is a case for holding a debate, but it is certainly the case that the other place responds to Select Committee reports in a rather more leisurely way than we expect Ministers to do in the House. Having said that, a report of the complexity and rigour of that produced by Jauncey requires time.
I have considerable sympathy with my right hon. Friend the Secretary of State not only in the length of time that he wants to take over this issue, but in ensuring that previous evidence that is now regarded as suspect is re-examined. I do not pour scorn on the desire to carry out other simulations, but I would include the qualification that, if they are carried out, they ought to involve a degree of independence. I accept that there is a devilishly difficult problem—such is the complexity of the equipment and the monitoring, that, outside the companies and the customers, not many people are capable of interpreting the data, but it is incumbent on the MOD to seek a means of doing that.
I should like to think that, equally, some of the legal advice that my right hon. Friend is seeking will be incorporated in the reply in a form that lay people such as ourselves can not only understand, but identify as legal advice. Many hon. Members have had misgivings about that because there has been a sense that the MOD has dealt with this issue as an in-house operation. There is often the rather depressing form of reaction to any evidence that emerges. There is more than a smack of 254 the Bourbons about the MOD: it repeatedly conveys the impression of having learned nothing and forgotten nothing. In part, that is attributable to the incrementalist way in which the evidence was gathered prior to Jauncey.
A number of the reports seized on technical data and other matters. Very often, the technical data were probably less than the sum of their parts, but we have now got a comprehensive collection of all the available evidence, which has been addressed with considerable style. I use the word "style" without in any way wishing to undermine the content on which the work is based. Indeed, many of us who have discussed this matter with Ministers—I have probably been at this game as long as most and longer than pretty well anyone else—have heard the mantra that pilots of Chinook ZD 576 flew at the wrong speed, on the wrong course, in the wrong place, at the wrong time, in poor weather and visibility, and caused the helicopter to crash.
That was the standard response from Ministers at the Dispatch Box or in private conversation. It was put a little more eloquently by Sir William Wratten, when he said:Lamentably, all the evidence points towards them"—that is, the pilots—
"having ignored one of the basic tenets of airmanship, which is never to attempt to fly visually below safety altitude unless weather conditions are unambiguously suitable for operating under visual flight rules."
§ Mr. Wilkinson
Is that not the case? To do anything other than what the hon. Gentleman has described is to imperil the aircraft and to fly it in a grossly negligent manner.
§ Mr. O'Neill
The hon. Gentleman is making my point for me. For men of the distinction of the pilots who have been accused of gross negligence, nothing would be further from their training, their habits or their behaviour. We are dealing with an element of gross negligence—everyone is agreed that it is extremely difficult to prove—involving pilots of the highest calibre, men who expressed misgivings about the craft that they were flying prior to the incident, men who would not take risks, having been so open and frank with their superiors and with others. They said that they had worries about the aircraft that they were required to fly. It might be said that that story could be fabricated, but it comes over in the evidence time and time again.
§ Mr. Wilkinson
The hon. Gentleman is most generous. Will he take it from me that history is littered with the wreckage of the careers and lives of the most experienced and wonderful pilots, who for various reasons seem to have broken all the rules and killed themselves, and perhaps others? That is a sad fact of aviation history.
§ Mr. O'Neill
I have heard that argument advanced before. I accept the point. I return to the responsibility with which the men concerned were charged. They had to take the cargo or the assets, whichever word we want to use. They had to take some of the most important people who were engaged in a war. Two of them were in the one aircraft at the one time, behaving negligently. I find that hard to understand.
The air marshals have always fairly maintained that the pilots never saw Mull and that no technical failure or malfunction occurred that deprived the pilots of control 255 up to the point of impact. Lastly, the Boeing simulator provided a reasonably accurate demonstration of the aircraft's movements for a period prior to impact. These were the assertions made by Ministers and by the air marshals. In paragraph 148 of the Jauncey report, we find the greatest single charge against that view. The Select Committee states:We consider that Sir John's conclusions on this matter"—that is, gross negligencemust be weakened by his reliance on matters which he treated as facts but which have been demonstrated to our satisfaction to be not facts but merely hypotheses or assumptions.That is the most telling part of all the reports.
If we are to read the interrogation or cross-examination that results in that conclusion, we see that it is not coming from someone who wishes to dissemble, or someone who wishes to put out a picture that is not true. It seems that we have almost lost sight of the wood for the trees. There is a welter of data. It must be said—this is one of the shortcomings of the tribunal system—that those with the greatest expertise are not necessarily the best people to weigh evidence. That is what the sheriff was able to do. It was what Lord Jauncey and his colleagues, doubtless under his direction, were able to do. That is where we are moving into new territories.
In the past, I have questioned people's integrity. I worried about the fact that there was a war. I have been concerned about technical data. I do not think that we need concern ourselves with those issues now. We have the facts. The way in which the inquiry has conducted its affairs requires our response. I hope that tonight we do not have votes and a confrontation. I hope that we can give the Government more time to pause and reflect.
It could be said that for the Department to change its mind on this issue is akin to a large tanker turning round. I make no reference to the Under-Secretary of State for Defence, my hon. Friend the Member for Kirkcaldy (Dr. Moonie). Much reassessment is required. It is correct that before such a process is undergone, every piece of evidence both for and against is submitted to the greatest scrutiny. That is why I do not disparage the attempt to re-engage with Boeing on this issue.
I would like to think that the young men concerned—the members of the crew who were with them and their passengers—and their families will know that justice has been done. At present, too many people believe that justice has yet to be done.,lb/> 8.46 pm
§ Mr. James Arbuthnot (North-East Hampshire)
It is an honour to follow the hon. Member for Ochil (Mr. O'Neill). Today, our thoughts are with the crews of the Chinook helicopters that are about to fly out from Odiham to Afghanistan. I live three miles from Odiham, and I have fought to keep the Chinook base there because the local community is so proud of what the Chinook fleet does for the country.
We know that the crews will acquit themselves well in Afghanistan. We know that they will acquit their country with great honour, because they always do. A year or so ago, they acquitted themselves utterly brilliantly in Sierra Leone, and we know that they will do no less in Afghanistan.
256 Our thoughts are also with the families of the crews. Being left behind is one of the hardest tasks of all. The families will be hoping, as will we all, that their loved ones will come back safely. Yesterday, the Secretary of State told us that there may be casualties in Afghanistan. The families will know that if, God forbid, something dreadful happens during the campaign, they will not have to go through the agonies that the families of Jonathan Tapper and Rick Cook have been through. As my hon. Friend the Member for New Forest, East (Dr. Lewis) has said, the Royal Air Force has rightly changed the rules. The attribution of blame for negligence is now left to the civil courts. However, it is not enough to change the rules when we see that the rules are not working. If the Royal Air Force imposes rules on itself it, like everybody else, it is obliged to follow them. The key rule in all of this is the rule,Only in cases in which there is absolutely no doubt whatsoever should deceased air crew he found negligent.That is what the RAF manual says; that is the rule that the RAF imposed on itself for good reason; that is the rule that it is obliged to obey and that is the rule that it broke.
In the debate on defence policy on 14 February, my hon. and gallant Friend the Member for Ruislip-Northwood (Mr. Wilkinson) made the best defence I have yet heard of the decision by the Ministry of Defence to stick to the verdict of the board of inquiry. He made a number of important points. First, he said that an aircraft that had not had clearance from the Aircraft and Armament Experimental Establishment at Boscombe Down should never againbe allowed to perform such an important mission".I agree. Only the day before the crash, Boscombe Down had not only failed to clear the aircraft, it had refused even to allow the continuance of test-flying of the Chinook mark 2. Perhaps the most poignant thing is that days before the crash Rick Cook had asked his father to look after his family if things went wrong; it seemed that he knew that the aircraft was not yet ready.
That brings me to my first question to the Minister. In his winding-up speech on 14 February, the Minister of State for Defence askedall Members to take their consideration beyond the technical aspects of the report and the terrible tragedy that occurred.He continued:We also have to examine the airmanship decisions taken by the pilots on the day."—[Official Report, 14 February 2002; Vol. 380, c. 382, 410.]Of course, he was right. However, those who defend the decision of the hoard of inquiry now tend to say, "Well, something may have gone wrong with the aeroplane, but it should not have been there at that time, at that speed and in those conditions." Can the Under-Secretary of State for Defence say whether the MOD accepts that indeed there may have been a fault in FADEC? After all, the MOD was taking Textron Lycoming to arbitration, so something must have been wrong. Will the Minister say, preferably yes or no, whether the MOD accepts that there could at least be some doubt about the air-worthiness of the helicopter's control system? If the answer is no, what on earth was the arbitration about? More to the point, why on earth did the arbitration succeed?
§ Mr. Dalyell
Is the right hon. Gentleman not shocked' that apparently the then Secretary of State, Malcolm, 257 Rifkind, a personal friend of mine, was not told that arbitration was going on? Should not someone in the MOD have said, "Look, Secretary of State, we think you ought to know that all this arbitration is going on and may be relevant."
§ Mr. Arbuthnot
Yes, I am shocked that Malcolm Rifkind was not told. Someone in the MOD should have said, "Look, Secretary of State, something is going on." However, the present Secretary of State should recognise that that is a new fact and was not available to the board of inquiry when it reported. For Ministers to come to the House, or speak on television or radio programmes, and say that the various inquiries have produced nothing new is an utter travesty of the truth.
§ Ms Debra Shipley (Stourbridge)
Does the right hon. Gentleman agree, given the quality of this evening's contributions, that it would reflect well on the MOD and the armed forces to acknowledge that things were not as they should have been? There is a need for change—there has indeed been a culture of change—and we must progress more constructively.
§ Mr. Arbuthnot
I agree the hon. Lady makes a fair point. If the Secretary of State, Ministers and senior officers and officials in the MOD said, "Yes, we recognise that the verdict has to be reopened," there would be no criticism of the MOD at all; everybody would accept that it was doing the right thing for the right reasons. That would be an excellent step for it to take.
I shall now turn to the crux of the speech made by my hon. and gallant Friend the Member for Ruislip-Northwood last month, which was broadly in support of the contention that the pilots should not have been there at all. As it turned out, of course, indeed they should not have been, but the question is, why were they? My hon. Friend said that their lordships, in their Select Committee finding, were "wise after the event". Of course they were, and so must we be. My hon. Friend said that their lordships hadnot flown helicopters at low level in difficult weather conditions."—(Official Report, 14 February 2002; Vol. 380, c. 383]Of course they had not. Neither, as I understand it, has Air Marshal Sir William Wratten. I do not criticise him for that; he is a fast jet pilot, and of course fast jets operate in wholly different conditions from helicopters.
However, their lordships are in a position to judge whether the weather conditions were difficult or not. Having done an exhaustive analysis of all the evidence, their lordships came to the conclusion that it was impossible to know what weather conditions the pilots were experiencing as they approached the mull.
§ Mr. Wilkinson
My right hon. Friend is most generous. We do know what the weather was. There were 10 witnesses on the Mull of Kintyre and they all confirmed that the mull was in cloud and that the cloud obscured the lighthouse. There had been a forecast of a 30 per cent. probability of IMC—instrument meteorological conditions—with visibility of about 500 m and low cloud in the vicinity of the mull. The weather report of the naval pilot speaks of cloud stratus at 200 ft and visibility of a quarter of a mile at worst. There was exceptionally bad weather all around the mull.
§ Mr. Arbuthnot
Well, it seems odd, then, that Mr. Holbrook could have seen sun glinting on the 258 helicopter. My hon. Friend's point about there being a number of witnesses on the mull is true. There were a number of witnesses on the mull, but all the witnesses were either on the mull itself or at sea level, so they were not able to determine what the pilots were able to see at their height. They were in different conditions.
I have not understood, and I do not think that the Select Committee in another place understood, why Mr. Holbrook was sailing among a number of different fishing vessels, yet no evidence was taken from the skippers on those vessels—in fact, none of the skippers of those other fishing vessels were even sought, let alone found or evidence taken from them.
There is no understanding of what the pilots saw because there is no evidence of what the pilots could see. There was no cockpit voice recorder; we do not know what they were saying to each other. There was no black box. There is no other evidence of what the pilots themselves could or could not see. The Select Committee reports Mr. Holbrook as having said that heconsidered that the crew of the aircraft when he saw it could determine without ambiguity where the Mull was and could see the cliffs, beach and lower perimeter walls of the lighthouse complex.The air marshals, though, did not know that Mr. Holbrook thought that. The reason that they did not know was that they did not ask him. Their lordships said that they asked Mr. Holbrook only three questions, only one of which
was relevant to weather, namely whether he could see the physical features of the cliff on the Mull.To that, he replied no.
In other words, when my hon. and gallant Friend says, as he did last month, that the crew were flying in very marginal weather, we do not know whether that is true. Anyway, I remind him that the board of inquiry was obliged to take that view only if there was "absolutely no doubt whatsoever". Mr. Holbrook, who was there, clearly goes further than to doubt it. He disagrees with the proposition.
I have two further points to make. First, the standard of proof required, of "absolutely no doubt whatsoever", is extraordinarily high. It is intentionally high because in cases where pilots are unable to defend themselves, the RAF rightly tries to look after its own personnel, who are, after all, flying an aircraft provided by the RAF.
Last month I took the liberty of saying where I felt that the air marshals had failed to apply the right test. I said that Air Marshal Sir John Day got it wrong when he said:In my judgment, none of the possible factors and scenarios are so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight.In using the word "likely" as he did, he was applying the wrong test. I believe that he genuinely did not understand that, and I believe that some of the Ministers who have since dealt with the matter have also genuinely not understood that.
For example, on 11 July 2000, the Minister for Transport, the right hon. Member for Warley (Mr. Spellar), then the Minister of State in the Ministry of Defence, answered a written question from me about the health of the two pilots shortly before the crash. His answer was thatThe Board of Inquiry concluded that the mental and physical state of Flight Lieutenants Tapper and Cook was most unlikely to have been a factor in the accident".—[Official Report, 11 July 2000; Vol. 353, c. 454W.]259 But likelihood has got nothing to do with the issue. There has to be "absolutely no doubt whatsoever". So here we have another element of doubt—could the mental or physical state of one of the pilots, or possibly of both of them, have been a factor in the accident? We do not know, as with so much of the rest of the case.
And now I come on to my final point, which is this. On 1 June 1995 there was another crash. A Harrier GR7, flight number ZG 475, crashed into the sea and, sadly, the pilot was killed. In the RAF board of inquiry report that followed, there was no finding of negligence, and that was obviously the right conclusion. One important paragraph from that report reads as follows:
The investigation was able to eliminate technical fault, structural failure and birdstrike as possible causes of the accident. The investigation focused, therefore, on the human factor aspects. Although there was no evidence to suggest that the pilot had been medically incapacitated, the Inquiry could not rule out the possibility that he may have been partially incapacitated for a period before the application of full back stick. It also considered feasible that the pilot may have been distracted by other in-cockpit tasks during the descent and did not notice the proximity of the sea.If an RAF board of inquiry could make such a finding—a correct finding—in relation to a single pilot in an aeroplane which contained an accident data recorder or black box, how could a board of inquiry possibly make a different finding in relation to an aeroplane which had numerous technical problems, which did not have a black box and which could have been under the control of either one of the two pilots at the time? How can it possibly rule out all question of illness? How can it possibly rule out even questions of disagreement between the two pilots? Obviously it cannot.
This verdict flies in the face of all reason and it flies in the face of all justice. If these pilots can be cleared by a Select Committee in another place, we should do the same.
§ Mr. Frank Field (Birkenhead)
I can be mercifully brief tonight. I wish to make only one point. That is not because I disagree with the comments of my right hon. and hon. Friends who have contributed to the debate; they have made their points in a most effective and superb style. I merely wish to take the House back to one comment that the right hon. and learned Member for North-East Fife (Mr. Campbell) made in his speech, and that was that this House should not question the integrity of the air chief marshals. It is proper that we should not question their integrity and that the House should be careful before commenting on people who are not Members of the House who cannot be here to defend themselves.
But given the way in which the debate continues to nimble on and for the evidence to be gathered as it is, I do believe that we have to put by the side of integrity, which none of us are doubting, an equally important quality, and that is judgment. It is not the judgment of anybody that we are talking about. When we are talking about Sir John Day, we are talking about somebody who is at the very centre of the defence of this country.
While, of course, I can understand the Government wanting to take time and to choose the moment when they will respond to a Select Committee report of the other 260 place, I believe that we have reached the point now where we are not questioning the effect of allowing this decision to stand on the morale of the services, but on the judgment of the electorate in the wider field. If people at the very centre of the defence of this country maintain a judgment in spite of all the evidence that is being put forward, that raises some terrifying question marks. I therefore hope that when the Government come to respond, it is not a question whether we should defend people who have been asked to make the decision and who still have a role in public life; it is a much bigger issue than that.
I bring us back to the central idea that has dominated this debate. We are not in a court, weighing up evidence or coming to a conclusion on that evidence. The tribunal, to use the phrase that others have used, had to have "absolutely no doubt whatsoever" about the evidence before it. When I hear the Government asking for even more simulations from the manufacturers, I worry that we might be in danger of not seeing the wood for the simulated models. There is now a body of evidence that does not prove that the pilots were innocent but that does suggest doubt. That is the issue on which the Government must concentrate their mind. It is not right to look for new evidence; the evidence must be weighed. After weighing it, on every point, the Government must be certain that they can dismiss it to maintain the judgment. The slightest glint of doubt in the Secretary of State's mind must bring him to a conclusion that the judgment is unsound and unsatisfactory and must be put aside.
Of course, in debates such as this, it is easy for us to forget the pilots, their memory and their families, and the numbers of people who were killed on that day and their families, who, clearly, will never get over this horrendous event. However, we are not debating our feelings towards them, as crucial as that is in another sphere. We are debating whether the Government, despite all the evidence that has been put forward, can maintain that there is "absolutely no doubt whatsoever" that the decision made by the tribunal is correct. I do not believe that anybody who is rational can maintain that.
Therefore, I say to my hon. Friend the Minister that the longer this goes on, the greater the worry not merely that the air chief marshals' judgment—not their integrity—might be wrong but that, perhaps for the wrong motives, the Ministry of Defence will come to a wrong judgment again. It is bad enough if one comes to a wrong judgment in taking away somebody's income support. One can often make good that mistake on a later occasion. However, we are talking about a small core of people on whose judgment the security of our country rests. We are in deeply worrying territory in which the Government still cannot make up their mind and come to a judgment, on the weight of the evidence, as to whether the tribunal inquiry verdict should be set aside.
Although the Government are of course right to take time, to work within the six months, and to choose the moment at which they wish to make their decision, the debate has rumbled on at length, here and elsewhere in the country. More and more people are not just talking about the integrity of the air chief marshals; they are beginning to talk about the judgment and the wisdom of the people who have the security of this realm as their first priority.
261 9.10 pm
§ Mr. Robert Key (Salisbury)
I am most grateful for the measured and informed way in which my right hon. Friend the Member for Haltemprice and Howden (David Davis) initiated the debate. He was followed in similar terms by the right hon. and learned Member for North-East Fife (Mr. Campbell) and by my right hon. Friend the Member for North-East Hampshire (Mr. Arbuthnot). I wish to add to their remarks, not to repeat them. I agree with everything that they said.
For 18 years, I have had the honour to represent more than 11,000 employees of the Ministry of Defence, including those who work at Boscombe Down where the RAF has been present with scientific and industrial civil servants who are engaged on the business of evaluating the RAF's aircraft. I have therefore been prone to support the chain of command and Defence Ministers of whatever Government and to recognise that they need our support in peacetime as well as in time of conflict. However, just as I am about to conclude that they may have got it right after all in this case, something happens to make me realise that they have got it wrong.
For six years, with my right hon. and hon. Friends, I have been engaged deeply in this case. Initially, I did not know the families of the two brave pilots who died. I am honoured to have made their acquaintance over the years. However, I know the people who work at Boscombe Down, so I was astonished at the tone that the Ministry of Defence used in dismissing their work.
I received a minute headed "Draft DO From AOCINC" to the assistant Chief of the Air Staff dated 6 June 1994—four days after the crash of ZD 576. The complaint was thatfor the second time this year, because of their concerns about the safety of the FADEC system, they had stopped trials flying on the Chinook Mk 2. I understand that, in practice, they are not flying the Chinook at all. Consequently, delivery of their aircraft to RAF Odiham on 21 July to enter minor servicing will be carried by a No. 7 Squadron crew who, because of test equipment fitted to the aircraft, will operate under a Service Deviation.In other words, Boscombe Down was not prepared to fly the aircraft. Odiham had to send a special crew and ordered them to fly an aircraft that Boscombe Down said should not be flown.
§ Lady Hermon
Did the air marshals and the board of investigation have that information from Boscombe Down?
§ Mr. Key
I have no way of knowing. I am sure that someone in the Ministry of Defence had the information, but I do not know whether it made its way to the Scottish inquiry or to the RAF board of inquiry.
The minute again refers to Boscombe Down and states:their ongoing stance towards the Mk 2 contrasts sharply with the considerable efforts being made by the front line to bring the aircraft into service and maintain a capability. It also does nothing to engender aircrew confidence in the aircraft. In sum, I find A&AEE's attitude quite incredible.That is an astonishing thing for any senior officer to say.
Under questioning by the Select Committee on Defence in its fourth report, "The Lessons of the Chinook Crash on 262 the Mull of Kintyre" published on 13 May 1998, Colonel Hodgkiss, who was at the time the assistant director of Helicopter Projects 1 at the Ministry of Defence referred to Boscombe Down and said:All that it has not satisfied is an internally-imposed test procedure which Boscombe Down believe they should apply because they consider that their role is to give unequivocal advice and recommendations to the operators of the aircraft.Quite so—that is what Boscombe Down did. It said that the aircraft should not fly. The RAF continued to fly it and ZD 576 crashed.
I have engaged in extensive correspondence with Ministers over the years. Allow me to quote a letter to me from the then Secretary of State for Defence, now Lord Robertson, dated 24 November 1997. He wrote:I would take this opportunity to make it abundantly clear that we are satisfied, on the evidence available,"—on the evidence available—that this accident was not the result of any technical malfunction.Lord Robertson then set up a meeting, which my right hon. Friend the Member for North-East Hampshire also attended.
The atmosphere at that meeting was not especially happy, because it was clear that the Ministry of Defence had been tasked to brief us. Its representatives did not like questions—they were not used to questions—and it was clear to me even at that stage, in November 1997, that the Ministry of Defence and the Royal Air Force were not going to consider any judgments about the standards of proof. They would stick to their demand for new evidence and they, and they alone, would decide what constituted new evidence. They would deny all subsequent evidence, from 1997 onwards, presented by technical experts—even people they had employed as their own consultants. They would even seek to justify not disclosing litigation in the United States of America.
I was astonished to find in the report that I quoted previously that when the then Minister for the Armed Forces, the right hon. Member for Hamilton, North and Bellshill (Dr. Reid), was questioned about whether the Scottish fatal accident inquiry knew of the United States case, he replied:Had the sheriff in any way indicated any interest in that, of course he would have been supplied with it as he was with everything else. There is an endless potential mine of information on tens of thousands of components in a Chinook. It is not possible to just load them on to a sheriff. We gave what we think was relevant to our Board of Inquiry and supplied anything the sheriff might want to ask for.What an extraordinary way in which to carry out any inquiry.
About that time, I visited the Defence Procurement Agency down in Abbey Wood for a briefing on its new functions and systems. I met the team that was engaged full-time in defending the Ministry of Defence's position. In 1998, there was a dedicated team at Abbey Wood; it is probably still there, answering parliamentary questions.
Some very strange things were happening. In my years in Parliament, I have had all sorts of pressure put on me—as have we all—but never anything quite like what happened in December 1997. At that time, I attended a reception for defence contractors in a hotel in Park lane. I was approached by a highly distinguished Conservative peer who had served in the RAF during the second world war and had been a Minister in Conservative 263 Governments. He had been asked by senior RAF officers to put me off the trail: he said that it would serve no purpose if I continued.
None the less, I had questions for answer. I asked the Secretary of State for Defence if he would place in the Library copies of the minute relating to the Textron White Paper and the White paper itself. I asked him about the fully automated digital engine control system and whether he would put in the Library copies of the 70 incident signals relating to FADEC. I later asked if he would put in the Libraryreports he has received from the United States authorities relating to the US Army Chinook CH-47 barrel roll incident in 1998"—[Official Report, 6 December 1999; Vol. 340, c. 347W.]which has already been mentioned. In answer to my request for the Textron White Paper, the then Under-Secretary of State for Defence, the right hon. Member for Warley (Mr. Spellar), told me:The subject document contains internal opinions and advice, disclosure of which would harm the frankness and candour of internal discussion. Accordingly, I am withholding the information requested under exemption 2b of the Code of Practice on Access to Government Information."[Official Report, 3 December 1997; Vol. 302, c. 264W.]The answers to my other questions cited exemptions 13, 2 and lc. The Ministry of Defence did not wish to share the information.
Then something extraordinary happened. On 5 December, I wrote a contemporaneous note which states that on Tuesday 2 December, I went to Carol Stone's Christmas party at the Institution of Civil Engineers. There I met a former Secretary of State for Defence who told me that, a couple of weeks previously, a senior official in the Ministry of Defence had telephoned his former special adviser to say would she please ask the former Secretary of State for Defence to persuade me to drop my pursuit of the Mull of Kintyre Chinook crash. That, in my judgment, was an extraordinary thing for a Ministry of Defence official to do.
So it went on. We were denied information, letters were exchanged and I took up the matter with the Cabinet Secretary, who referred me back to the Secretary of State for Defence, who said that he was very sorry that I was not satisfied with the answers and that I would therefore have another briefing with officials, which I had; it was acrimonious and I will not relate it here.
In spite of being denied evidence, and in spite of the failure to answer questions, Mr. Martin Bell, who was then a Member of Parliament, wrote to the Prime Minister. On 18 July 2000, the Prime Minister said in his reply:This Government has tried to be entirely straightforward and open about the circumstances of the crash and the conduct of the Inquiry. The proceedings of the Inquiry were released. Questions have been answered fully. Any material which might have amounted to new evidence, or which might have offered fresh perspectives on the accident, has been analysed … I repeat to you the long-standing pledge, that I also give to Mrs. Tapper, that any new evidence would be thoroughly considered. In the absence of such grounds, however, I can see no case for re-opening the inquiry.This distinguished lawyer, our Prime Minister, added in his own hand:
I am sorry if this is a disappointing reply but we do need fresh evidence to justify re-opening this issue.264 It is not a question of new evidence but of judging existing evidence, what is meant by "absolutely no doubt whatsoever", and standards of proof. The RAF regulation required a much higher standard of proof than is required in criminal cases, including those involving murder. In criminal cases, the standard is "beyond reasonable doubt"; in civil cases, the standard is "the balance of probabilities". The latter standard was applied by the Scottish sheriff, who refused to attribute the incident to pilot error.
Ministers accept that there is "absolutely no doubt whatsoever" as to why the two pilots were unable to avoid crashing into the Mull of Kintyre. The RAF does not know, and cannot say, why things went wrong and the aircraft was in the wrong place at the wrong time. Whatever anyone may say, no one will know the answer. Ministers also accept that there is "absolutely no doubt whatsoever" that no mechanical or computer software fault occurred. To me, both propositions are incredible. I cannot believe them, and nor would any jury.
The issue is about honour, not money. As we have heard, the Ministry of Defence has changed the rules retrospectively—no one who dies will ever again be accused of gross negligence. The issue should be a matter of honour for this Government and this Prime Minister. He should do the decent thing and overturn that dishonourable verdict.
§ Lady Hermon (North Down)
It is a pleasure speak in the debate, having heard the contribution of the right hon. Member for Birkenhead (Mr. Field). I am greatly concerned by some of the evidence put before us this evening, and I hope that the Minister will address these issues.
I have listened intently to hon. Members' contributions, but we should reflect for a moment or two on the personal tragedy involved. On 2 June 1994—almost eight years ago—29 people were killed outright on the Mull of Kintyre in dreadful circumstances, which were made worse by the fact that the aircraft in question caught fire. It was a great tragedy, and the circumstances proved deeply upsetting to the widows. Air Chief Marshal Sir William Wratten described it as
the largest peacetime tragedy that the Royal Air Force had suffered.Although my husband, a former Chief Constable of the Royal Ulster Constabulary, retired from the RUC some five years before that crash. I know that it was also the greatest tragedy in the RUC's history. Ten members of the police service, who were also members of special branch, died. Even today, the Secretary of State for Northern Ireland rightly paid tribute, in a completely different context, to the work of special branch—not only in respect of the security of Northern Ireland, but in a wider sense.
This morning, I spoke to one of the six RUC widows who live in my constituency. She said:
My husband is dead, but he still has his reputation. The MOD can do no more to him or for him, but the MOD can do more for Flight Lieutenants Tapper and Cook … they can clear their names and give them back their reputations.The fact that 29 people died caused enormous heartache and pain, as it would to anyone who lost a loved one in such dreadful circumstances. The fact that the two pilots 265 were held to be grossly negligent was enormously painful, hurtful and offensive not only to the flight lieutenants but to the others widowed in that crash.
Earlier, hon. Members discussed the difference between negligence and gross negligence. I may be corrected by the Minister, but I had understood that the pilots being held to be grossly negligent had at an early stage affected the compensation payable to their widows. Gross negligence made a difference. If the circumstances have changed, I should be glad to hear the Minister explain to the House the compensation issues that arise.
The RAF's manual, which was available at the time to the air marshals and does not constitute fresh evidence, clearly states in black and white:only in cases in which there is absolutely no doubt whatsoever should deceased air crew be found negligent".The manual contains guidelines on what amounts to negligence or human frailties, so it is not as though no guidance was available. Paragraph 1 of annexe G to chapter 8 of the manual states that, broadly speaking, causes of accidents fall into three categories: technical faults, natural operating or medical hazards, and human failings.
Paragraph 2 explains what human failings amount to and suggests that judgments be made by answering two questions. The first is:Was the person's act which is under consideration an essential link without which the final event would not have happened?The second is:Ought the person to have foreseen that their action or their failure to take action would in all probability occasion the final event.The House of Lords Select Committee report concludes: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.Referring to the air marshals' conclusion thatthe pilots were grossly negligent in placing the aircraft in the position in which it was at or before the way point change was made",it found thatregardless of what happened thereafter, the question to be answered is whether there is absolutely no doubt",and that the air marshals had not properly answered the questions.
The Government must be fair. As I said in my intervention on the Secretary of State earlier, in considering fatal accident inquiries and investigations, great sensitivity should be used. In light of the extremely high standard required at the time, the MOD should not linger for six more months but quickly conclude that an error of judgment was made in finding that the two flight lieutenants were grossly negligent. Their names must be cleared. The MOD has an opportunity to do that, and I urge it to do so at the earliest opportunity.
§ Mr. John Wilkinson (Ruislip-Northwood)
The hon. Member for North Down (Lady Hermon) made a deeply moving speech.
I declare an interest as an elected companion of the Royal Aeronautical Society by virtue of five years' service on the flight safety awards panel of the Civil Aviation Authority.
266 In my speech on 14 February I stated that in my judgment the air marshals were
justified in their belief, with the wisdom of hindsight, that the crew, who were flying in very marginal weather with high ground ahead and with the aircraft slightly off track to the right, probably ought to have aborted, or at least got well clear of the high ground with all speed.The point is this. On take-off, the weather forecast for the vicinity of the Mull of Kintyre gave a 30 per cent. probability of weather that could by no possible stretch of the imagination be construed as suitable for flights under visual flight rules. The reports that we have make it clear that as the aircraft approached the mull the weather was indeed well below conditions for visual flight rules.
In justifying Air Chief Marshal Sir William Wratten and Air Vice Marshal Sir John Day, who reviewed the board of inquiry's conclusions, I added:The House would be wise not to follow the path taken in the other place, or to try to second guess the investigations of military accidents, however tragic the circumstances"—few could have been more tragic than these—
however much we sympathise with the grief'.—[Official Report, 14 February 2002: Vol. 380, c. 383-84.]There could have been no better qualified air officers commanding to review a board of inquiry's findings than those two air marshals. Air Vice Marshal Day has a BSc in aeronautical engineering from Imperial college, served two tours as a flying instructor—one in command of a flying training squadron—was a support helicopter pilot and then commanded a support helicopter squadron. Indeed, less than 10 years before the accident he commanded the base at RAF Odiham where the Chinooks are located.
Air Chief Marshal Sir William Wratten is an aviator's air marshal if ever there was one—certainly, he is no Whitehall warrior. He commanded the Royal Air Force in the Gulf war and led the battle of Britain fly past a few months previously. One could not find a finer flyer and a prouder example of the best traditions of the service.
That is not to say that the professional distinction, the Air Force crosses, the legions of merit and the aeronautical degrees immunise the two air marshals from the possibility of error, any more than long experience on Chinooks, including much time in a special forces role, precludes the possibility that two much-respected deceased flight lieutenants could commit an error of basic airmanship that constituted gross negligence.
However, since my 14 February speech I have studied the sortie profile again and have looked in greater depth at the original conclusions of the board of inquiry, the air accidents investigation branch's findings and Sheriff Young's fatal accident inquiry, together with their recommendations and those of the House of Lords Select Committee. I did so in the knowledge that the air marshals were not callous or unfeeling or insensitive to the reputations of the pilots whom death had robbed of the right of reply. On the contrary, a lifetime of service flying, with the inevitable loss of many friends in all-too-frequent air accidents, will have taught the air marshals that military flying operations and their safe execution require standards of discipline and perfection that can never be compromised.
Flying regulations are quite simply life preservers. Failure to comply with them is often likely to be fatal and cannot be condoned in peacetime operations. 267 In circumstances where they are not followed, as in the case of Chinook ZD 576's attempts to maintain low-level flight according to visual flight rules, in instrument meteorological conditions, at about cruising speed, in the vicinity of high ground on the Mull of Kintyre, this cannot be exonerated by the experience of the crews. Indeed, far from being a mitigating factor, the very experience of the crew justifies the attribution of gross negligence. Sentiment cannot enter into air accident investigations; probity is what they are about.
There is no doubt that the aircraft was flying in instrument meteorological conditions. The witnesses on or about the mull confirm that. There were 10 of them, including a lighthouse keeper whose job is to take weather reports. The aircraft's speed is not in doubt, in that it can be verified by the spread and disintegration of the wreckage at the crash site, as well as by readings recovered from the instrumentation. There was no confirmation of any technical malfunction that would, of itself, have caused the accident, and this was verified by the board of inquiry and by the air accidents investigation branch's report. The point is that the crew should not have been flying in a way that could have led to the loss of the aircraft, had there been any malfunction.
§ Mr. Arbuthnot
My hon. Friend says that there was no confirmation of any technical malfunction. That is not the test. Is there a possibility that there was a technical malfunction? That is the test.
§ Mr. Wilkinson
The test is the one that we are looking at today—whether gross negligence was the right finding.
§ Mr. Wilkinson
No, I cannot.
By changing the way point from the Mull of Kintyre lighthouse to Corran, the crew deprived themselves of the certainty of the reference to the lighthouse that was their turning point. The lighthouse was in cloud and, having removed position information with reference to the mull, this could have been the crew's fatal error. Indeed, I suspect that they were looking for the mull lighthouse. We know that they were south-east of track, and that there was error on the TANS, which had been faultily programmed before flight. The engines were running normally at the time of the crash, and there was no evidence of a flying control failure that would, of itself, have precipitated the accident.
Their lordships and their supporters have indulged in many speculations, relating to FADEC problems, control system jams, undemanded excessive left rudder input on the part of Flight Lieutenant Cook, who was flying the aircraft in the right-hand seat, and to much else besides. However, the accident parameters are entirely consistent with cruising flight into high ground, with a last-second attempt to flare the aircraft and to yaw away from the hill to port.
As in so many accidents, there are a number of events which, while not contributory, cannot pass unremarked. It is true that Flight Lieutenant Tapper could self-authorise without a briefing officer, and if the squadron leader on 268 duty had been available, he might perhaps have prevented the sortie by persuading the flight lieutenant not to choose the Mull of Kintyre routing in those weather conditions, or by persuading him to consider other possibilities.
The weather is paramount here. I have mentioned the forecast of a 30 per cent. probability of instrument meteorological conditions around the mull. The actual forecast made by a qualified observer closest to the time of the accident was that of the Sea King pilot, whose log stated that there was, at worst, seven eighths stratus at 200 ft and, at best, seven eighths strato cumulus at 900 ft. The log also states that the visibility was, at worst, a quarter of a mile. The height of the top cloud was 1,500 ft, which is more or less the height of the top of mull. The weather was, therefore, in no way suitable for flight in visual flight rules.
The crew ought to have aborted the sortie or climbed above safety altitude as soon as a deterioration occurred or as soon as there was a likelihood of deterioration. Coming in off the sea, with the fishbowl effect that occurs when flying low over water, makes these judgments particularly difficult, and makes it negligent to press on without firm visual pinpoints, which there is no evidence that the crew possessed.
In conclusion, I can only say that the air marshals fulfilled their duty as I believe they were required to. The criteria relating to negligence areWhether the person had the necessary degree of skill and/or knowledge, or should have had that skill and/or knowledge, to make the right decision and act upon itandWhether the person failed to exercise the degree of skill and/or knowledge required".Given all the evidence of the weather conditions prevailing and the flight profile decided on, I believe that the air marshals were correct, and I hope that the Ministry of Defence upholds their judgment. 9.40 pm
§ Angus Robertson (Moray)
I am grateful for the opportunity to speak. Along with the Secretary of State and every other speaker, I share the sadness of the families of the two pilots and the two crew members, and those of the 25 passengers who were on board the Chinook.
In the run-up to the debate I was struck, as one of the newer Members, by the view—taken by many during the election campaign—that Parliament and politics are a cynical business in which there is no agreement between parties or between Members with differing opinions, on the left or on the right, on constitutional questions. I am therefore proud to take part in this debate, and to support the motion along with Members on both sides of the House. I am also humbled by the fact that others here have contributed so much in the past—for instance, the hon. Member for Ochil (Mr. O'Neill), a long-standing campaigner on this issue, the right hon. Member for North-East Hampshire (Mr. Arbuthnot), who made one of the most significant speeches I have heard during my short time in the House in a defence debate on 14 February, and the hon. Member for Salisbury (Mr. Key). We should also bear in mind the comments of the former Member for Edinburgh, Pentlands.
Like everyone else who supports the aims of the motion, I do not think that this is a party political issue. The debate can send a powerful message to the MOD and 269 to Ministers that elected representatives throughout the House are deeply unhappy about the findings of negligence. We are not interested in who is to blame. We would be delighted to know who will break the logjam, clear the names of Flight Lieutenants Jonathan Tapper and Richard Cook, and maintain the good standing of the MOD.
Mine is primarily a constituency interest. I represent two of the largest RAF bases in the United Kingdom. I speak to many people serving on those bases, and I know that a number of them share the disquiet expressed by nearly every speaker today. They are not interested in second-guessing the motives or questioning the professionalism of those who arrived at the negligence finding; what they want, what I want and what so many who have spoken today want is natural justice. They believe that the balance of proof has not been achieved, and that this is an issue of judgment.
This has been oft repeated, and I repeat it again: I cannot get my head around how a conclusion of negligence could have been reached in the first place, given that the test is "absolutely no doubt whatsoever". I am a great supporter of the Scots legal system—of its rigour and its high standards—and I am sure that even a first-year Scots law student just starting a course would find it difficult to understand how, if negligence could not be proved with the standard "balance of probabilities" constraints of the fatal accident inquiry, it could be proved with the higher RAF standard of "absolutely no doubt whatsoever".
I am concerned about the prospect of a new simulator. I agree with other Members that if all that is available is an average speed, a hypothesis based on another hypothesis and inconclusive input data, a simulation will not produce a finding that will support the truth.
I welcome the comment by the Secretary of State that he would take new legal advice. That is perhaps a glimmer of hope that we can take from the debate.
It is not our job to prove hat the flight crew were not negligent. It is up to those who support that unproven finding to prove that they were. The Government should listen to the bipartisan views expressed in this debate. They should set aside the verdict. I hope that they do so at the earliest opportunity.
§ Mr. Henry Bellingham (North-West Norfolk)
I shall be very brief. I wanted to speak in the debate for several reasons. First, I represent a large number of RAF personnel based at Marham and Coltishall. Secondly, I represent the family of Jonathan Tapper, who live in Burnham Thorpe in my constituency. Thirdly, I was Parliamentary Private Secretary to Sir Malcolm Rifkind when my hon. Friend the Member for Reigate (Mr. Blunt) was special adviser. I have no doubt, having spoken to Sir Malcolm, that had he known at the time that the MOD had been in dispute with the manufacturers, he would not have accepted the advice of the two air marshals. I am absolutely clear on that fact.
We have had some excellent speeches, but I just wanted to say that the families of the two pilots have been through hell and back. Their sons were found guilty of gross negligence, a finding that was not upheld by the first two inquiries and by the third inquiry of the House of Lords Select Committee. One does not have to be a lawyer to 270 conclude that, had either of those pilots survived, they probably would have faced charges of manslaughter. We are seeing an appalling slur on their professional reputations, a slur on their families and an undermining of two young men who had an impeccable service record. Having looked at the House of Lords report very clearly, I feel that the Government have an opportunity to set aside the findings. If they do that, they will restore honour to the Department.
§ Mr. James Gray (North Wiltshire)
The House has heard some very moving, wonderful, well-balanced speeches from both sides of the argument. Hon. Members on both sides of the House will wish to join me in offering our renewed condolences to the families of all the 29 people who were killed in the tragic crash of Chinook ZD 576 on the Mull of Kintyre on 2 June 1994, but we pay particular tribute to the families of Flight Lieutenants Jonathan Tapper and Richard Cook, who have fought a long and determined campaign to change the conclusion of the original RAF board of inquiry that they were guilty of gross negligence.
We have heard a number of outstanding speeches from hon. Members with a great deal of knowledge and interest in the tragic incident. My right hon. Friend the Member for Haltemprice and Howden (David Davis) has taken a long-standing interest in the case since he chaired the subsequent PAC inquiry into it. My right hon. Friend the Member for North-East Hampshire (Mr. Arbuthnot) and Sir Malcolm Rifkind, who were the Ministers responsible for the original decision, have been very courageous in now admitting that their original judgment was incorrect. As the hon. Member for Ochil (Mr. O'Neill) reminded the House, no one now believes that the pilots flew at the wrong speed, at the wrong height and in the wrong place, as was accepted wisdom at one time.
My right hon. Friend the Member for North-East Hampshire also has a strong constituency interest, with RAF Odiham in his area, from where it was announced yesterday that three Chinooks were to be deployed to Afghanistan with the 45 Commando battle group. All parts of the House will wish to join him in wishing those personnel well and in thinking of the families they leave behind. Incidentally, the Minister might like to tell us whether the three Chinooks will be fitted with black box flight recorders. I hope that they will.
Uniquely, hon. Members on both sides of the House spoke in support of the Conservative motion. I mention in particular the right hon. and learned Member for North-East Fife (Mr. Campbell), my hon. Friend and neighbour the Member for Salisbury (Mr. Key), who has been involved in this matter for so long, the hon. Member for Moray (Angus Robertson), and my hon. Friend the Member for North-West Norfolk (Mr. Bellingham). The broad cross-party agreement on the issue may be something to which Ministers will wish to pay particular attention, and in recognition of it, we will not seek to divide the House this evening.
My hon. Friend the Member for Ruislip-Northwood (Mr. Wilkinson), who speaks with such authority on all aviation matters, spoke with great courage and was the only hon. Member to seek to persuade the House that the original conclusions of the air marshals were correct. I sympathise with his view that respect for the chain of 271 command must be paramount in the maintenance of proper military discipline, and it is extremely unusual, to say the least, for this place to seek to question a conclusion that has been reached.
In doing so—as the right hon. and learned Member for North-East Fife and the right hon. Member for Birkenhead (Mr. Field) reminded us—we are not seeking to challenge the honour or integrity of Ministers or senior RAF officers; we are seeking to question their judgment. The experience of the two air marshals concerned is beyond question. None the less, we would appeal to them to reconsider the conclusion that they came to four or five years ago.
Under normal circumstances, Her Majesty's loyal Opposition go to lengths to support ministerial operational and deployment decisions. Our support for the Government on everything that they have done in Afghanistan is testimony to that. However, we have come to the clear conclusion that it really is time to revisit the MOD's original decision on the Chinook crash.
Since the original RAF board of inquiry in 1995, there has been the fatal accident inquiry in 1996, which left wide open the question of what caused the accident. In 1998, the Select Committee on Defence stopped short of making any judgment on the cause of the crash. In 2000, the Public Accounts Committee—chaired by my right hon. Friend the Member for Haltemprice and Howden—went further and disputed the original findings. Most recently, the Select Committee in the other place overturned the original inquiry's findings altogether.
The sheer weight of evidence that those various inquiries have produced, and the legal and military distinction of many of those who are calling for a rethink, must give all of us cause for concern about the original conclusions.
In particular, it would be difficult for any of us to do other than to listen carefully to the Select Committee's conclusion that
we have considered the justification for the Air Marshals' finding of negligence … against the applicable standard of proof, which required 'absolutely no doubt whatsoever'. In the light of all the evidence before us … 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.Now is not the time to revisit the evidence in detail. That has been done convincingly by a number of hon. Members tonight and satisfactorily by all four inquiries. Listening to them, it seems to me that the only conclusion that any dispassionate observer could possibly come to is that the sequence of events that led to the crash remain, and will always remain, to some degree unclear. We do not know what happened on the Mull of Kintyre on that fateful day, and we will never know.
Since that is the case, it is simply incorrect to conclude that there is "absolutely no doubt whatsoever" that gross pilot negligence was to blame. No court in the land—no court in the world—would come to the conclusion that there was "absolutely no doubt whatsoever" that gross pilot negligence was to blame. That point alone should be more than sufficient to lead Ministers to overturn the conclusion of the RAF inquiry.
272 The Secretary of State agreed in his introductory remarks that internal MOD procedures have now changed so that the sequence of events could not happen again, particularly with regard to the verdict of gross negligence, which would now have to be arrived at in a civil court. Does the Secretary of State agree that, given that these circumstances could not arise today under current law, he could surely revisit the findings of the inquiry at the time?
The Government's amendment to the cross-party motion this evening asks the House to await their official response to the Select Committee report. Will the Under-Secretary tell the House when that will be? The Secretary of State talked generally about it being within six months. It has to be within six months, or the Government will be grossly neglecting this House. We want to know precisely when it will be. In particular, we do not want the Secretary of State to choose a particular moment to release the report; for example, as we come up to summer recess. We want him to release the Government's reply at a sensible time, and as soon as possible. In doing so, we must be certain that he will rely on more than Boeing's re-simulation, which of course would be unsatisfactory.
In simple terms, it seems to us that the principle of innocent until and unless proved guilty should, beyond any shadow of doubt, apply in this case. There is a long and honourable tradition of an assumption against deceased pilot error in the RAF.
Despite the Opposition's very real reluctance to do anything that might, or might be thought to, undermine the authority of the chain of command—and I reiterate our respect for the two air marshals concerned—it seems that on this occasion a very tragic miscarriage of justice has occurred. We appeal to Ministers and the RAF to take this opportunity to clear the names of these young pilots. Only then will their families be able to lay their memories to rest.
§ The Parliamentary Under-Secretary of State for Defence (Dr. Lewis Moonie)
My right hon. Friend the Secretary of State said in his opening remarks that this tragic crash has generated strong feelings among all those who have been and continue to be involved in its consequences. The debate tonight has served clearly to emphasise this point, and I would like to take this opportunity, as others have, to express my sympathy to the families of the 25 passengers and four crew who were so tragically lost in that accident.
The House of Lords Select Committee report on this complex accident requires, and is receiving, full and detailed analysis. The points made by their lordships are being reviewed and, where appropriate, further detailed technical work will be undertaken.
One specific area that was widely reported this morning, particularly in the Scottish press, is that of the Boeing simulation. The Committee criticised the original Boeing simulation and, as part of the detailed assessment of the report that is being undertaken, it is right to seek Boeing's input. Indeed, I would expect hon. Members to criticise us if we did not do so. Boeing is the only company that makes the Chinook, and there is frankly no other way in which to carry out the simulation. We have asked that it review its original analysis of the final seconds of the Chinook's flight leading up to the crash. 273 The level of contractor involvement in investigating the Mull accident was consistent with normal practice in military and civil aircraft investigations. Such help from manufacturers is a necessary part of such investigations.
The board of inquiry was set up to determine the cause of the crash. It was conducted in a professional manner and the final decision was made on the available evidence. The findings were based fundamentally on airmanship and duty of care principles. The essence of the judgment of gross negligence was that all the available evidence indicated that the pilots flew a serviceable aircraft at speed and at a low level into cloud-covered high ground.
§ Dr. Moonie
I will not have time to, I am sorry.
In reaching its conclusion, the board had a wealth of expertise and experience available to it from all the relevant professional disciplines, including helicopter and aircraft operations and technical matters.
§ Dr. Moonie
No, I shall not.
Other authorities, such as the Defence Research Agency and the manufacturers of the aircraft, its equipment and avionics supported and made evidence available to the inquiry. A number of technical issues have been postulated over the years as possibly explaining the accident. Indeed, the Defence Committee investigated the lessons of the crash and published a most helpful report in 1998. It concluded that there was no compelling evidence to support claims of fundamental flaws in the design of the Chinook or of its components. More recently, technical issues were also examined closely by the Select Committee of the House of Lords, whose report we are fully considering.
I should like to turn briefly to the points made during the debate and, in respect of her attempt to intervene, that of the hon. Member for North Down (Lady Hermon). Compensation is a very complex issue—I shall write to the hon. Lady and place a copy of my letter in the Library.
The right hon. and learned Member for North-East Fife (Mr. Campbell) is a distinguished lawyer and QC. The many points that he made about the details of the legal position are for the legal profession and not for a lay person such as myself until I am in receipt of the appropriate advice on the subject. I therefore cannot make any comments of my own on that subject until the advice that my right hon. Friend has indicated is being sought by the Ministry of Defence is to hand.
My hon. Friend the Member for Ochil (Mr. O'Neill) rightly pointed out the great complexity of the equipment involved. He criticised the Ministry of Defence for dealing with the matter internally. That is so, but such is the case in virtually every complex issue that I have had 10 deal with over the past two years in this job, and I have so far had no cause to doubt the professionalism and attention to detail that goes into the advice that we are given, be it by our civil servants or by officers—
§ It being Ten o'clock, the debate stood adjourned.