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Lord Dixon-Smith: My Lords, perhaps I may deal, first, with the point made by the noble Baroness, Lady Thomas of Walliswood. The second part of my amendment does not place any form of time limit on anything. It defines only the time for which an individual scheme may run. However, there is no limit to the number of schemes, and those individual schemes could run for a very long time indeed.

The Minister expressed concern that I am being over-prescriptive. We have debated this issue before and the truth of the matter is that this whole Bill is one huge great prescription. It is getting bigger all the time. When we have finished with the Bill tonight, it will be an even bigger prescription. The thought that I am being over-prescriptive by adding something like 25 lines does not make sense.

The Minister has stated that there will be a review after 10 years. That review may go extremely well. However, the mayor is to have the opportunity to establish major infrastructure projects and those are financed over very long periods. Of course the Minister may say that such schemes will need to be funded for as long as is needed. However, if I were the mayor, I would come up with two or three schemes with 40 to 60-year payback periods and ensure that London benefited from them for a long period of time in that way. That course is open to the mayor.

I am afraid that I disagree with the Minister on this issue. We have debated the matter before and he has been kind enough to say that I am consistent in my views. I believe that we should test the opinion of the House.

7.35 p.m.

On Question, Whether the said amendment (No. 72) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 134.

Division No. 4

CONTENTS

Alexander of Tunis, E.
Anelay of St. Johns, B.
Astor of Hever, L.
Attlee, E.
Belstead, L.
Biddulph, L.
Blatch, B.
Brabazon of Tara, L.
Bridgeman, V.
Burnham, L. [Teller]
Carnegy of Lour, L.
Chadlington, L.
Cochrane of Cults, L.
Colwyn, L.
Cope of Berkeley, L.
Cross, V.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Fookes, B.
Geddes, L.
Glentoran, L.
Higgins, L.
HolmPatrick, L.
Hooper, B.
Jenkin of Roding, L.
Liverpool, E.
Lucas of Chilworth, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mancroft, L.
Marlesford, L.
Miller of Hendon, B.
Mills, V.
Monro of Langholm, L.
Napier and Ettrick, L.
Norrie, L.
Northbrook, L.
Northesk, E.
O'Cathain, B.
Park of Monmouth, B.
Patten, L.
Seccombe, B. [Teller]
Soulsby of Swaffham Prior, L.
Strathcarron, L.
Torrington, V.
Trefgarne, L.
Trenchard, V.
Wade of Chorlton, L.
Wise, L.

NOT-CONTENTS

Acton, L.
Addington, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barker, B.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carlile of Berriew, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller]
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Gale, B.
Gilbert, L.
Glanusk, L.
Goldsmith, L.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Grey, E.
Hacking, L.
Hamwee, B.
Hardy of Wath, L.
Harris of Greenwich, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollick, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jacobs, L.
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Kilbracken, L.
Kintore, E.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Milner of Leeds, L.
Molyneaux of Killead, L.
Monkswell, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Patel, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sefton of Garston, L.
Sharp of Guildford, B.
Shepherd, L.
Sheppard of Liverpool, L.
Simon, V.
Smith of Clifton, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thornton, B.
Tope, L.
Tordoff, L.
Varley, L.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Mostyn, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

1 Nov 1999 : Column 640

Lord Burlison: My Lords, I beg to move that further proceedings after Third Reading be now adjourned. In moving this Motion, perhaps I may suggest that the House does not return to this business before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Chinook Helicopter ZD576

7.45 p.m.

Lord Chalfont rose to ask Her Majesty's Government whether the issues raised in the Computer Weekly report RAF Justice are serious enough to justify re-opening the RAF board of inquiry into the crash of Chinook helicopter ZD576 on the Mull of Kintyre on 2nd June 1994.

The noble Lord said: My Lords, this is the fourth time that I have brought up this subject in your Lordships' House. I do not apologise for doing so because I believe it to be a matter of the greatest importance. I want to emphasise once again that in raising this matter I am not in any way attacking the Government. This is a matter which has been the concern of successive governments, and the previous administration indeed, when they were in office, took the same line as the present one. Nor do I make any criticism of the Royal Air Force, whose regulations governing accidents of this kind are clear and comprehensive.

The background will be familiar to most of your Lordships and I shall not go over it again in great detail. I would only say that on 2nd June 1994 a Chinook helicopter crashed on the Mull of Kintyre killing four Royal Air Force crew and 25 passengers from the Northern Ireland intelligence community. The subsequent Royal Air Force board of inquiry decided that the two dead pilots of the aircraft, Flight Lieutenants Tapper and Cook, were guilty of gross negligence. I believe that verdict was unjust and unjustified. It has brought disgrace upon the names of two young Royal Air Force officers and caused lasting distress to their families. And not only to their families, my Lords. As an ex-soldier I still find myself sometimes lying awake at night thinking of two bright and brave young men whose reputations have been destroyed by one of the worst accusations that can be levelled at a professional officer.

Let me first say briefly why I believe that the verdict was unjust and then I shall comment, also briefly, on two developments which have taken place since I last brought up this matter in your Lordships' House. The Queen's Regulations for the Royal Air Force state

1 Nov 1999 : Column 641

specifically that deceased air crew may be found guilty of negligence only if,


    "there is absolutely no doubt whatsoever",

about the cause of the accident. My contention is that the circumstances surrounding this accident are riddled with doubt in almost every aspect.

It is worth mentioning at this point that the initial findings of the Royal Air Force board of inquiry, presided over by a Royal Air Force officer, found no reason to attribute human failing to either of the pilots. This opinion was supported by the Royal Air Force station commander who was next to review the findings. It was only when those findings reached two senior officers in the Ministry of Defence, who had the duty of reviewing the proceedings of the board of inquiry, that the two dead pilots were found guilty of gross negligence. No other authority or inquiry, including the fatal accident inquiry held in Scotland and presided over by a distinguished judge, has supported this verdict.

At this point I should tell the House that I received a comprehensive briefing from officials of the Ministry of Defence who have been dealing with the matter. The briefing was arranged by the noble Lord, Lord Gilbert, when he was the Minister in this House dealing with defence matters. The officials concerned gave me a full, frank and comprehensive briefing. They explained the reasons why the verdict of gross negligence had been reached and told me that I was free to use the information they gave me in any proceedings in this House.

There was one element in the briefing that seemed to me to be of vital significance. I was told that the verdict of gross negligence had been arrived at when all other possible causes for the accident, such as mechanical malfunction or computer failure, had been eliminated and that therefore the only possible conclusion was negligence on the part of the air crew.

Even if all other possible causes could safely be eliminated, that seems a most bizarre method of arriving at the conclusion that two young men were guilty of gross negligence. In any case, other possible causes cannot be eliminated. The claim that there was no evidence of technical or computer malfunction does not mean that there was no malfunction; it means only that there was no evidence.

I should like to mention the two important developments that have taken place since we last discussed the matter in this House. The first is specified in the terms of my Question. It is a long, technical and comprehensive report produced by the magazine Computer Weekly entitled RAF Justice. The subtitle is:


    "How the Royal Air Force covered up software problems while blaming the two pilots in the 1994 crash of the Chinook helicopter".

I do not propose to blame software or any other equipment problems for the accident. My quite simple point is that the report demonstrates conclusively that there might have been other causes for the accident than pilot error. It is a serious and detailed report. It indicates, among other things, that the Chinook's computer system, known as FADEC, might have

1 Nov 1999 : Column 642

contributed to the crash. Without going further into the matter, it is my contention that the report underlines my proposition that in no circumstances could anyone honestly say that there is "no possible doubt whatsoever" as to the cause of the accident.

The second and more recent development is the interview that was broadcast on Channel 4 News on 13th October in which Sir Malcolm Rifkind, who was Secretary of State for Defence at the time of the crash, said that he believed that he had not been in full possession of the all the facts when he endorsed the verdict of gross negligence and that,


    "information in its entirety was not made available ... to either of the inquiries";

namely, the Royal Air Force board of inquiry or the fatal accident inquiry. Sir Jeremy Hanley, who was Minister for the Armed Forces at the time of the crash, has also called for a new inquiry. He visited the other Special Forces Chinook crews and pilots at Aldergrove after the accident and gained the impression that software failure was a possible cause of the accident.

In the course of his interview, Sir Malcolm Rifkind said:


    "The simplest solution would be for the Royal Air Force and the Ministry of Defence to say, 'No, there is no need for any further inquiry. We are prepared to acknowledge that in retrospect and, particularly, seeing as we no longer allow or would even contemplate finding negligence against pilots, we should set aside that previous decision. Remove it completely'".

Noble Lords will note that Sir Malcolm Rifkind refers to another important aspect of this whole debate. Since the Chinook accident and inquiry, Ministry of Defence regulations have been changed to provide that boards of inquiry should no longer apportion blame in the case of aircraft accidents. It seems that an important lesson has been learnt, but apparently too late for Flight Lieutenants Tapper and Cook.

I am coming to the end of my time, although there is much more that could be said about this whole saga. The clear implication of a verdict of gross negligence against these two young men is, as the noble and learned Lord, Lord Brightman, said in this House on 2nd June 1998, that the two dead pilots have been convicted of manslaughter without being able to offer any defence.

It is precisely for that reason that the Queen's Regulations rightly demand that no deceased air crew should be found guilty of negligence unless there is absolutely no doubt whatsoever about the cause of the accident.

So I should like to ask the Minister one simple question to which I should like to have an unequivocal answer. It is this. Can she state categorically in this House that she, in possession of all the facts, is convinced that there is absolutely no doubt whatsoever about the cause of this accident? That is an important question. If she answers that she cannot say that there is no doubt whatsoever, or declines to answer the question, the inferences are obvious. It is my contention that the causes of this accident are clouded by doubt from beginning to end.

1 Nov 1999 : Column 643

Although in my original Question I asked whether the Government were prepared to review the findings of the Royal Air Force board of inquiry, I now say, as Sir Malcolm Rifkind said, that there is no need for any ponderous procedural machinery to be set in motion. All that Her Majesty's Government need to do--and they could do it tonight--is to say that in the light of all the facts now known, and bearing in mind that no future board of inquiry will ever be able to apportion blame again, the verdict of gross negligence should be quietly set aside on the simple basis that the cause of the accident is unknown, as indeed it is.

No one knows what caused the accident. To say that it was pilot error or, even worse, gross negligence is totally incomprehensible. I do not suggest that anything disreputable lies behind this tragic story. But unless the Government are now prepared to put the matter right, others, perhaps less gullible than I, might suspect that someone, somewhere, is hiding something.

7.57 p.m.

Baroness Park of Monmouth: My Lords, we owe this debate to the noble Lord, Lord Chalfont. I begin by reminding the Minister that in our debate of 22nd May 1997 (at col. 557 of the Official Report) the noble Lord, Lord Gilbert, confirmed in answer to my representations that flight recorders were being installed in all Chinooks. Will the Minister assure the House that all now have them?

I now turn to the new evidence, which became available only four years after the crash and squares with the statement by the RAF board of inquiry that,


    "An unforeseen technical malfunction of the type being experienced on the Chinook HD2 which would not necessarily have left any physical evidence remained a possibility and could not be discounted".

The fatal crash of a US Army helicopter in 1996, at first blamed on the pilots because no evidence was found of technical malfunction, was subsequently traced to an inherent design flaw which could also have affected ZD576. Other new evidence concerns contamination of hydraulic equipment. But most relevant is the experience of a US Chinook crew in 1998, when uncommanded flight movement and simultaneous control jams nearly caused a fatal crash. On that occasion, the crew survived to tell the tale. Had they died, there would have been no evidence of a technical malfunction causing a crash. Those pilots survived; our two did not. Surely that argues for a review in the light of these new factors.

I should like also to ask why the MoD has consistently refused to use its own experts--Malcolm Perks, its expert witness on FADEC, or the senior RAF test pilot, or, most of all, Boscombe Down, which exists to test aircraft? Why was the Government's own accident investigation team, and the Scottish inquiry, not told that the Government were at that moment litigating against Textron Lycoming, the supplier of the FADEC engine control system, after a series of FADEC-related incidents

1 Nov 1999 : Column 644

involving Chinooks? Boscombe Down had just grounded all Chinooks after pronouncing the FADEC software unacceptable. The investigator was not told about that, and quoted only the views of Textron, the contractor, in his report. Not Malcolm Perks, but Textron, was asked to help the investigators, who knew nothing about FADEC, to decide whether its equipment was faulty. When fault codes were found, the contractors said that they were insignificant. Well, they would, wouldn't they? E5, described by Textron as a typical nuisance code, was the very one which had contributed to the severe damage suffered by a Chinook in 1989 when the pilot could not control the aircraft. The investigators did not know about that, nor that only a few weeks before the crash the assistant director of helicopter projects had said that the FADEC software needed to be revised to resolve safety case issues.

We owe it to the painstaking and professional research carried out by Computer Weekly that much valuable evidence has been assembled. I greatly admire and value the RAF and recognise that we are not qualified to reach operational decisions; but I have two serious concerns. First, should judgment be made not on evidence but on the apparent lack of evidence, especially since with the passage of time many indicators which were unclear can now be understood? My second concern arises when I read in an answer to a question the words,


    "The RAF, in conjunction with the Procurement Executive".

We are looking at a world that is increasingly dominated by market forces. I very much hope that any fresh inquiry will be driven not by management and contractual priorities within the MoD, but by the prime need both to do justice to the pilots and to give proper weight to the professional judgment of the Government's own experts who have not yet been heard.

8.1 p.m.

Lord Craig of Radley: My Lords, throughout my career as a Royal Air Force pilot and qualified flying instructor one point was emphasised time after time. Confronted with an emergency, first ensure that your aircraft is safely under control before you respond to the warning. If clear of cloud, stay there. It is safer to fly visually than to have to concentrate on the aircraft's instruments to maintain altitude.

Emergencies are frequently practised in flight simulators, so that pilots learn to handle them in a safe, professional way. The emphasis is always that one should not become distracted by the emergency and risk losing control of the aircraft or flying into danger. As a flying instructor I would introduce in-flight emergencies for my students to tackle. I might flame out one of the two engines on a Meteor jet during the climb out after take off. The student's first reaction had to be to control his aircraft and check the sharp yaw and drop in airspeed before going through the drills to deal with engine failure. All of that must sound like commonsense, but the risk of doing the wrong

1 Nov 1999 : Column 645

thing, or the right things in the wrong order, is always there. Hence, much stress is placed on proper training and situation awareness.

How does that read across to this tragic accident? The Chinook was seen in clear weather conditions over the sea south of the Mull of Kintyre. Technical evidence reveals that the Chinook remained straight and level, advancing at cruising speed until the final four seconds before the crash when a steep climb was initiated. It impacted the side of the Mull below 1,000 feet. We shall never know for certain why the crew flew into the overcast so far below safety height. But what was expected of them was to fly safely, not hazard their passengers or aircraft, and therefore either to climb above the safety height for their route or remain clear of cloud. With two pilots, one to fly and the other to deal with any emergency--if there was one--the expectation must be that the aircraft should have stayed in the clear. It did not, even though helicopters have greater manoeuvrability than fixed-wing aircraft.

Was there a reason for not following the safe option? Was there some event, or combination of events, which so distracted two highly experienced pilots that they were forced to neglect all their training and responsibilities for the safety of their passengers and aircraft? Given the very clear evidence of the AIB that the Chinook was flying under control right up to the moment of impact, what was it that led to the failure to observe flying orders? Professional, expert opinion is that no event, or combination of technical or other problems, could have so overwhelmed the responsibility and acknowledged skill of the two pilots to prevent them from manoeuvring the helicopter either clear of cloud or above the requisite safety height for the route.

Unless there is relevant new evidence the finding is right. But if the extensive publicity succeeds in saving another crew from failing to get their priorities right when faced with bad weather or some emergency, an essential requirement of a board of inquiry--to learn lessons for the future--will have been achieved. The distress of those who lost loved ones has, sadly, been rekindled by tonight's debate, I believe to no good purpose. I hope that we have no more such questions on this tragic event. In my view, five years on there is no need for any review.

8.5 p.m.

Viscount Slim: My Lords, I too do not seek to blame anyone, but in considering this inquiry I note some general points. The report abounds with "maybe", "impossible to rule out", uncertainties and doubts. It is a report that is full of doubt. As the noble Baroness said, in the middle of it a bunch of civil servants was active in taking on the manufacturers for flaws in certain aspects of the systems on the aircraft.

It has come to my notice that at one stage a senior Chinook project manager gave the opinion that these aircraft should not be used operationally. I do not know whether the MoD should always decide what is relevant evidence for the purposes of an inquiry. As the

1 Nov 1999 : Column 646

noble Baroness said, many operators, based on statements by and conversations with air crew, were unhappy with the aircraft. There were--call it what you will--faults.

The noble and gallant Lord is right. First, one must ensure that one has the aircraft under control. However, this particular FADEC has no manual override if it goes wrong. In layman's terms, it has no accelerator to enable the pilot to work the aircraft with his feet (so to speak). Pilots appear to have no command over the system, which is dangerous. This Chinook is perhaps still not safety critical.

We have heard about black boxes and cockpit voice procedures. Hardly any such devices are fitted to these aircraft. An honourable Member of another place received a rather damp letter to say that such systems would not be installed until the end of 2000. Only about half a dozen have black boxes. That is not good news. In view of all the problems with this aircraft, it is not consistent with safety.

As to the crew, I have had the great pleasure of being flown by men like this on far more extraordinary journeys than a simple one across the North Sea to Scotland. These men do not fly into hills or through cloud when they have sensitive passengers on board; they turn left or right or go up or down. I believe that this is one area of great doubt. These pilots have been held to be culpable of gross negligence. I agree with my noble friend Lord Chalfont. I believe that such a finding is pretty close to manslaughter, which in turn is pretty close to murder. I do not know what the civil courts or noble and learned judges in your Lordships' House would say about that. What happens to two men who cannot answer back?

I should like to put two questions to the noble Baroness. How many Chinooks today are grounded, not flying, out of the total Chinook force? What about the widows? I recall, I hope wrongly, that in my day if gross negligence came up widows did not receive a proper pension, or received no pension. I hope that the Minister can give me comfort that that is not so.

8.9 p.m.

Lord Rathcavan: My Lords, much of this debate is and will be no doubt focused on the technical issues, in particular the FADEC system which was so rigorously investigated in the recent Computer Weekly report.

I would rather focus on some of the eye witness reports of the behaviour of that Chinook helicopter as it flew over the North Antrim countryside on that clear and bright June evening in 1994--which I think raises further doubts to those raised by my noble friend Lord Slim. I live in that part of North Antrim and can see the Mull of Kintyre with extraordinary clarity on some days. I often go boating in the North Channel between Garron Point and the Mull of Kintyre which on other days, as on that fateful evening, is hidden by sea fog or cloud.

Most of us in Northern Ireland are used to the familiar throb of the double rotor Chinooks as they cruise across the countryside usually at a height of 5,000 feet. But no one who was near the flight path of

1 Nov 1999 : Column 647

this Chinook as it flew down the Glens of Antrim and out to sea will ever forget that particular evening. It appeared to be flying at a height of 100 feet, at which it makes a huge noise and vibrations on the ground. In the small seaside village of Carnlough, the milkman, Ambrose McSparren, remembers how it rattled windows and shook buildings. He could even see the faces of the passengers looking out of the port windows, a woman in the front window.

The Chinook gained height a little as it followed the coast beyond Carnlough harbour towards the cliff-top Catholic college of Garron Tower where priests at a conference ran out to see it fly just below them and turn out to sea, aiming slightly to the left, as they thought, of the Mull, only five or 10 minutes before it crashed into those cliffs. Higher up the glens it had hedgehopped over farmlands, terrifying animals. Horses at Glenravel belonging to a dentist, Hugh McCann, panicked and had to be taken in.

From all accounts it might have been on an unlikely sightseeing trip. It did not appear to have any regular or determined flight path during those several minutes. Evidence suggests that it took a number of low turns. Some witnesses thought that it might have been trying to slow down and land before heading out to sea.

I raise these issues because I am not aware that any investigators took evidence from the many eye witnesses. I have referred to a couple of witnesses in detail as an example of the memories that still exist. It should be possible to identify more clearly the irregular flight path the Chinook took before a yachtsman saw it heading out, low over the sea.

Why did the earlier investigations not take evidence from those who saw the Chinook flying so close that they could see the faces of its unfortunate passengers? If the board of inquiry is to be reopened, it should look seriously at what appears to have been evidence previously ignored or overlooked, which raises further doubts about the previous conclusions.

8.13 p.m.

Baroness Strange: My Lords, as my noble friend Lord Chalfont is bringing forward this important debate during the dinner hour, time is scarce, and I should like to make only one subliminal contribution in order to leave more time for other noble Lords.

The RAF AP3207 states clearly that:


    "Unless there is absolutely no doubt whatsoever, deceased aircrew may not be found negligent".

In this case there clearly is doubt. The two young pilots are dead. The contagion of the world's slow stain affects them not at all. But their families are alive. This verdict can only add to and prolong their grief.

8.14 p.m.

Lord Meston: My Lords, my noble friend Lord Chalfont is to be congratulated on his persistence in raising this matter. I have presumed to say anything on this sad matter only because, with others who have heard or read the earlier debates, I have had a

1 Nov 1999 : Column 648

continuing feeling of unease about whether the finding of gross negligence was justified given the quality and quantity of evidence available then and now.

Expert accident reconstruction, however skilled and sophisticated, is not a precise science. It is bound to have limitations when there are no survivors of the accident and only few eye witnesses. In this case, as we have heard, there was the further limitation of no recorders on the Chinook.

If a finding of gross negligence depended on there being absolutely no doubt whatsoever, it required proof to a standard even more stringent than the high standard required in criminal cases in our courts. At least in those cases the accused is alive with an opportunity to speak in his or her defence.

Even in civil cases, the established principle is that the more serious, or inherently improbable, the allegation the more convincing the evidence has to be. It is inherently improbable that pilots would act so contrary to their instincts and training. That is not just legalism; it is elementary fairness.

One cannot help feeling that what has been applied here is the Sherlock Holmes approach: when you have eliminated the impossible whatever remains, however improbable, must be the truth. That deductive process simply will not do outside detective fiction. The RAF inquiry investigation found no evidence of structural or technical malfunction. But it is a truism that absence of proof is not necessarily proof of absence.

In the real world, even when several possible explanations can be discounted, there can sometimes still be insufficiently strong pointers remaining to enable a definite conclusion to be reached. That was what the sheriff decided in the Scottish fatal accident inquiry in this case. That was not an abnegation of his duty. It was a proper decision on the evidence as it appeared to him. It may well still be a proper conscientious decision to be substituted for the finding of gross negligence. It will not prevent lessons being learned for the future. I warmly support the noble Lord, Lord Chalfont.

8.17 p.m.

Lord Norton: My Lords, I congratulate the noble Lord, Lord Chalfont, on his persistence in raising this important subject yet again in order to try to reverse the injustice that seems to be so obvious.

The whole problem with this unusual case stems from the fact that the judge and jury are also the defendants. It is a situation that the civilian world of flying would not tolerate. The charge is that the MoD released into service an aircraft whose engines were controlled by flight safety critical software that was flawed. It was so flawed that the Ministry's own airworthiness specialists at the Aeroplane and Armaments Experimental Establishment described the software as unacceptable in a memo dated 3rd June, one day after the crash. The software was described by it as "unfit for purpose" and it declined the aircraft's release into service without a rewrite of the software.

1 Nov 1999 : Column 649

However, after taking their own independent advice, the MoD and the RAF decided in effect to overrule the A&AEE. Then came the horrific incident on the Mull. This raised questions about the software. But many of the problems did not come to light in any of the accident inquiries. The crash investigators at Farnborough were not aware of all the facts about the FADEC engine control system when they wrote their report.

In its 140 page report, the magazine Computer Weekly also reported that the investigators were unaware of an accident in 1989 when a Chinook helicopter was almost destroyed by a FADEC design flaw.

The MoD has sought to dismiss the 1989 accident as irrelevant to the accident inquiries because it says that the accident was not caused by a FADEC problem. This is incorrect as the MoD's own paperwork shows when it was pleading its legal case in America. The paperwork shows that the Ministry believed that a FADEC design flaw caused the accident and it was awarded 3 million dollars.

The Ministry has said that of course there were changes in the software design between 1989 and 1994. But despite those changes, the Chinook project manager wrote in a memo dated January 1995 that there were system integration and software problems between February and July 1994. I am not saying that the FADEC control system caused the accident--nobody knows that--but it is just as speculative to say that there is absolutely no doubt that it was pilot error.

8.20 p.m.

The Earl of Stair: My Lords, this is an important debate because two pilots are carrying the blame for the loss of a Chinook and several lives purely on the basis that no technical fault has been discovered.

The aircraft was carrying a very important load, being carried for operational purposes by an experienced and operational crew outwith the Northern Ireland theatre. The weather on the whole was reported good and there was no reason for flying in the location where the helicopter crashed. Indeed, the flight programme should have kept the aircraft on a course offshore. In the words of the article in Computer Weekly, the pilots had every intention of changing course before reaching the peninsula.

Military aircraft do crash, as has recently been demonstrated, with a subsequent sad loss of life. Where I live, military low flying is normal. I pay tribute to every single member of the Armed Forces who is involved in this extremely skilled operation. I do not hold with the current view of some that since the end of the Cold War there is no longer a requirement for aircraft covertly to approach the target.

The Computer Weekly article, while not perhaps an official document, has appeared to investigate this tragedy in some detail and has raised interesting questions. I disagree with the recent comments made by the noble and learned Lord, Lord Hardie, the Lord

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Advocate, and do not believe that the matter should be closed while there is still doubt as to the cause of this crash.

It is clear that many facts were not presented to either the Minister or the inquiry. Indeed, there is also doubt between the RAF investigating officers and the upper echelons of the service, as has been said by other noble Lords. The fact that no "technical malfunction" was discovered may well be a correct assumption of pilot error in some situations. However, this modified aircraft type is still having problems. The pilots who sadly died had considerable doubts about the serviceability of this specific aircraft before the crash occurred.

Every example stated in the article points towards a variety of serious fault warnings either showing in the cockpit of the Chinook or physically affecting the performance of the aircraft by creating an inability to use controls to maintain the flight integrity of the aircraft. This would appear to happen with unexplained and untraceable jamming controls.

According to the report, at least 18 seconds before impact the pilots were busy inserting the new course into the flight computer. If the system malfunctioned when they attempted to change course, I would suggest that 18 seconds of fighting to regain control of a faulty aircraft which cannot or would not respond to controls is not very long.

Having considered the report, and bearing in mind that some five years on problems, although luckily not fatal, are still being encountered, there is in my mind a clear case for reopening this investigation, particularly as this recurring system fault has resulted in a slur on the reputations of two otherwise excellent pilots.

The Chinook is an extremely robust aircraft with a tremendous world-wide reputation as a tough workhorse. I personally experienced this in the Falklands war when, with virtually no time for major services, the only surviving aircraft from the sinking of the "Atlantic Conveyor" was apparently still flying with only two of its seven essential instruments working.

I do not believe that the aircraft type is at fault. I have already spoken about the pilots involved. I do believe that in the light of subsequent problems re-investigation is required.

I apologise to the Minister for not giving adequate notice, but I want to ask two questions. First, how many other British military helicopters in service currently rely on this or similar FADEC? Secondly, a Chinook on Exercise Gryphons Flight between 22nd March and 1st April 1999 developed major faults which rendered it unairworthy. Were these faults in fact due to problems with FADAC?

8.25 p.m.

Lord Fitt: My Lords, three weeks ago I went to the Mull of Kintyre and visited the sight of this terrible tragedy. I spoke to scores of people, in particular to the lighthouse man who was driving down the hill with his wife when the crash occurred. He told me in vivid

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terms that before the crash took place he knew there was something wrong either with the pilots or the aircraft.

I met scores of people and no one--not a single one--is prepared to blame the pilots. Not a single widow of the 28 men killed is prepared to place the blame on the pilots. The fact is that there is no proof that the pilots were guilty of negligence. There is no certainty of a misdirection of their activities.

I believe that rather than have an inquiry we should allay the grief of all the victims' families and that this verdict should be set aside.

8.26 p.m.

Lord Trefgarne: My Lords, I do not know what happened to the RAF helicopter which is the subject of tonight's Question. However, I do know that the RAF inquiry procedures, which were in place in the late 1980s when I had some responsibilities for these matters, were less than wholly satisfactory. At that time, an inquiry was caused to be made into those procedures by Mr Tench, the lately retired inspector of civil aircraft accidents, and he was, frankly, very critical of the RAF inspection investigation procedures. I know that the noble and gallant Lord, Lord Craig, who was in a senior RAF position at that time, does not agree and I apologise for disagreeing with him now. However, the fact is that at that time the procedures were heavily criticised.

Those self-same procedures were applied, with only few modifications, to the investigation of this accident. Therefore, I must agree with my noble friend Lord Chalfont that a further inquiry ought to be made. I believe that the present conclusions are unsound.

8.27 p.m.

Lord Jacobs: My Lords, I thank the noble Lord, Lord Chalfont, for bringing forward the debate. I am of a cynical disposition and two years in this House has not changed that. The idea of persuading a department of government, or the Government themselves, to go back on a decision fills me with foreboding. However, in this case, I cannot believe that, if the Minister were given time to read the majority of the report, rather than the informed briefings she has no doubt received, she could not fail to recognise the imperative for reopening the inquiry in the cause of justice.

Helicopters are not like aeroplanes, ships or trains. The risk profile of helicopters is very high. The commercial judgment of insurance companies gives the game away. To insure a &163;1 million value of an aeroplane might cost &163;10,000 a year. To insure a &163;1 million value of a helicopter might cost as much as &163;120,000 a year. That says a lot about the lack of reliability of helicopters generally.

The Chinooks had neither a cockpit voice recorder nor a flight data recorder. The Ministry of Defence has been criticised for such omissions. The MoD was committed to fitting FDRs by 1995 following a report made in the late 1980s. Yet, surprisingly, by 1994 they were still not fitted.

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There is a desperate human need to find a cause for every accident. The absence of any evidence of technical malfunction presents a serious problem. But in the UK there were nine serious accidents involving RAF Chinooks between 1984 and 1994--nine! In five of them, the pilots lived to explain what happened and in none of the cases was any blame attributed to the air crew. The same could not be said of the remaining four accidents, all of which were fatal. Three of the four were put down to air crew error. Clearly, if one wants to maintain one's reputation one must survive.

What if there is little or no evidence? I understand that those with a legal background have taken an interest in this matter, and that there is a strong body of opinion that the evidence was insufficient to satisfy the high standard of proof which the RAF's own regulations require before a finding of negligence can be made. I believe that in this inquiry an honest mistake was made.

The best reason for reopening the inquiry is new evidence. There is indeed serious new evidence. Four years after the accident, a Chinook helicopter came tumbling out of the sky. The air crew tried desperately to turn it the right way up, but failed to do so and could find no evidence of any malfunction of the instruments. Miraculously, 250 feet above the ground, the Chinook aircraft turned around and the crew and everyone on board were saved. Obviously, the Chinook was examined in great detail afterwards, and it must be stated that no fault was found with the helicopter.

Therefore that is proof conclusive that a helicopter of this particular manufacture can develop faults which cause it virtually to crash and subsequently no fault is found with the helicopter. In this case, that may well have happened. On the evidence available, one cannot but conclude that there is no proof that the pilots were negligent.

8.32 p.m.

Lord Burnham: My Lords, at the time of the crash, visibility over the Mull of Kintyre was less than a mile. If visibility is less than five miles, the regulations state that aircraft must fly under instrument flight rules, which means that they must be a thousand feet above the nearest obstacle. In this case, that would have meant 2,500 feet. The pilots were clearly not doing so, and it is to be assumed that the finding of the RAF court of inquiry was based on those facts.

The merest yachtsman--of which I am one, but much more to the point, so too is the noble Lord, Lord Rathcavan--who has sailed round the Mull knows how treacherous the conditions are and how bad the visibility is liable to be. The noble Lord raised a number of interesting points. I have a feeling that his remarks to your Lordships tonight in themselves justify a reopening of the inquiry because there is a lot there.

In a debate in May 1997 in your Lordships' House, the noble and gallant Lord, Lord Craig, pointed out that the civil air accident investigation branch had

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been able to rule out categorically a structural or technical malfunction and that engine and navigational equipment was functioning normally up to the point of impact. That needs looking at in the light of the remarks of the noble Lord, Lord Jacobs, about other Chinooks.

In his reply to that debate, the noble Lord, Lord Gilbert, said that the question was why the aircraft was being flown in that way at that time. The failure to answer that question has been the basis of the negligence verdict. The problem with the negligence verdict is how one determines negligence. That is of course an RAF inquiry definition and not a legal one. It is:


    "The doing of something which, in the circumstances, a reasonable person would not do or would do differently";

or,


    "a breach of duty to take care or, in other words, carelessness in a matter where care is demanded".

The Secretary of State at the time, Sir Malcolm Rifkind, has recently raised a number of points which throw doubt on the behaviour of the aircraft and of its pilots. The Minister may be able to answer those points today, but it would be more satisfactory for the inquiry to be reopened in order that they and their relevance to the crash may be fully studied.

I shall make briefly one or two points. One of the FADECs survived. Does it show any malfunction in either of its engines? A number of noble Lords have said that at the time the Ministry was suing Textron Lycoming for the failure of the FADEC in 1989. Will the Minister explain the reason why the case was brought? Was it a failure in test procedures or did the engines go into override as a result of test procedures not being properly carried out?

Another point relates to the stand taken by Squadron Leader Burke, a Chinook pilot to whom I believe the noble Viscount, Lord Slim, referred, at Boscombe Down. What was his position and expertise and what was the value of his allegations?

The trouble is that all those points must now be taken into consideration when the verdict on the two pilots, so distressing to the service and to their families, is evaluated. Do they make any difference and does the verdict stand up? The reopening of the inquiry will tell us.

8.35 p.m.

The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, I too thank the noble Lord, Lord Chalfont, and I pay tribute to his assiduous pressing of both this Government and the previous government on the circumstances of this tragic accident. The noble Lord has of course been utterly consistent in his wish to ensure that no injustice has been done in this case. I hope that he and this House will accept that that has also been the objective of Ministers, not only in this Government but also, I believe, in the previous administration.

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I want to cover as many of the issues raised as possible, but I fear that in the time available to me it may be that I shall have to write to a number of noble Lords to deal with the details of the points that they have raised.

On 2nd June 1994, Chinook ZD576 departed from RAF Aldergrove on a flight to Fort George, Inverness. The aircraft had a crew of four and carried 25 military and civilian passengers who were to attend a conference in Inverness. It took off from RAF Aldergrove at 1742 and at approximately 1800 crashed on the Mull of Kintyre. All on board were killed.

Before departing RAF Aldergrove the pilots obtained an accurate weather forecast for their flight. They elected to carry out the flight under visual, rather than instrument, flight rules. Under visual rules air crew must remain clear of cloud and are required to keep in sight of the surface. The weather forecast was suitable for a flight under these rules, but it did warn of poor conditions affecting the Mull of Kintyre, as is often the case. For this a bad weather contingency plan would have been required. The highest point of the Mull of Kintyre is 1463 feet above sea level. Instrument flight rules stipulate that an aircraft must be at least 1000 feet above the height of the highest obstacle along the intended track if the crew is not in visual contact with the ground.

The transit across the Irish Sea was uneventful and conducted in clear conditions but, as forecast, there was very low cloud and poor visibility around the Mull. A witness reported that at a distance of about two nautical miles from the Mull, or about 40 seconds or so from impact, the aircraft was flying at a height estimated at between 200 and 400 feet. The witness estimated visibility at about one mile and noted that the Mull was covered in cloud and fog. Other witness statements from those present on the Mull at the time, including the lighthouse keeper, also remark on the fog and lack of visibility.

The first way-point, or land mark, that the pilots had entered on their on-board navigational computer for this flight was the Mull of Kintyre lighthouse. At 0.95 miles, or about 20 seconds before impact, the crew released the computer from its fix on the Mull of Kintyre and set it to indicate the bearing and distance to the next way-point selected at Corran, 87 miles to the north. At that point the pilots knew how close they were to the Mull and given the deteriorating weather and the strict visibility requirements under visual flight rules, they should by that time already have chosen an alternative course. Given that they had not done so, they could and should under the rules immediately have either turned away from the Mull or slowed down and climbed to a safe altitude.

At 15 to 18 seconds before impact, the aircraft's height was only 468 feet as recorded on its tactical air navigation system. The pilots would have seen the same information on their radio altimeter, but even so at that point the aircraft was still climbing only gently. At four-and-a-half seconds before impact the crew exercised an emergency manoeuvre and climbed about

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150 feet in those final four-and-a-half seconds. The aircraft crashed at a height of 812 feet at a ground speed of 151 knots, or 174 mph.

I turn now to the speculation that there may have been some other reason for the crash, and I shall try to answer some of the questions raised by noble Lords this evening. I believe that the points raised by the noble and gallant Lord, Lord Craig, and indeed some of the points from the noble Lord, Lord Burnham, went directly to the heart of the matter. The evidence of the eye-witness about 40 seconds before the crash, and of the crew themselves in re-setting their navigational computer about 20 seconds before the crash, are telling indicators that at that time the pilots were not grappling with an in-flight emergency. Yet they were flying on, contrary to both instrument and visual flight rules. The evidence is that they were already too close to the cloud-covered mass of the Mull, travelling too low and too fast.

I turn now to the issues raised in the Computer Weekly report. On 26th May the magazine published a lengthy report about the crash on the Internet. I hope that noble Lords will understand if I concentrate on some of the main points because the whole report was some 50,000 words long. As the noble Lord, Lord Chalfont, has made clear, this and other articles published by Computer Weekly sought to cast doubt on the RAF's finding of negligence and to advance instead a scenario in which the technical causes, particularly of the Chinook's Full Authority Digital Electronic Control System--that is, the FADEC to which so many noble Lords have referred--may have been responsible for a catastrophic failure.

The RAF's Chinook fleet was fitted with a FADEC system as part of an upgrade from the Mk 1 to the Mk 2. Its purpose is to regulate the power output of each of the Chinook's two engines. Each engine has a FADEC unit and each unit is designed under a failsafe principle, with both primary and back-up control channels. Should one unit fail then the other will regulate power on the good engine to compensate. The probability of both primary and back-up channels on both engines failing at the same time is infinitesimal.

As part of the board of inquiry, the Air Accidents Investigation Branch of the DETR conducted an independent technical investigation. It has always been acknowledged that there were some problems with the FADEC software during its development, and the AAIB report to the inquiry states that:


    "In view of reports into a number of ongoing service difficulties experienced with the operation of FADEC, the engine change units and FADEC were examined in some detail".

Here I answer one of the points raised by the noble Lord, Lord Burnham, because the report goes on to say of the engines:


    "strip examination indicated that both were running at high speed with turbines hot at time of impact, and revealed no sign of pre-impact failure or malfunction that could have affected the operation of either engine".

The noble Lords, Lord Chalfont and Lord Burnham, the noble Baroness, Lady Park, and the noble Viscount, Lord Slim, have also drawn our

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attention to the so-called "Wilmington incident", and the legal case between the MoD and Boeing and Textron Lycoming. Let me explain that the incident which gave rise to this litigation occurred in 1989--some five years before the crash on the Mull. It involved a pre-production version of FADEC software which was comprehensively redesigned prior to the introduction into service of the Chinook Mk 2 in 1993. The Wilmington claim arose because of damage caused to a helicopter during testing and because procedures had not been put in place to deal with such a failure, which could have been anticipated.

It has also been alleged that the board of inquiry was unaware of the Wilmington incident. It is true that no reference to Wilmington is included in the board of inquiry report for the reason that FADEC had already been ruled out as a possible cause at an early stage in the investigation.

Computer Weekly has also asserted that Boscombe Down thought that FADEC was unsafe. In this case, Boscombe Down indicated a wish to assess the design of the FADEC software using a static code analysis--a methodology used by the nuclear industry. However, FADEC software was not amenable to the automated software tools available to Boscombe. It could not therefore verify the software design to its satisfaction. It did not say that FADEC was unsafe.

The Ministry of Defence has looked at all the new evidence. For example, in May 1998 Mr Robert Key, MP, forwarded us papers setting out alternative theories offered by a computer software expert and the retired RAF pilot, Squadron Leader Burke, to whom the noble Lord, Lord Burnham, referred. Those were assessed in considerable detail over the summer of 1998, and a full appraisal of all the points was offered in September of that year. I understand that we have not heard further on those points from Mr Robert Key.

Secondly, when Computer Weekly published its report, the MoD collected all the material it had posted on the Internet, examined it in detail and responded to the magazine on 21st July, giving it the opportunity to send us any other relevant material which it might have. At its request, we also sent the magazine a more detailed analysis of its report on 23rd September. I appreciate that it is only a matter of a month since that date but we still wait to hear from Computer Weekly.

Finally, the Defence Committee of another place has inquired into the lessons of the crash and published a report which concluded that it had found no compelling evidence to support the claims that there were fundamental flaws in the design of the Chinook Mk 2 or its components. We also wrote to the committee on 21st July offering comments on the Computer Weekly report, and that letter was also released to the press.

I pick up the second major point made by the noble Lord, Lord Chalfont, about the doubts raised by Sir Malcolm Rifkind. I imagine that those doubts have had a compelling effect on a number of your Lordships. Sir Malcolm has raised questions about

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what he was told about the Chinook accident when he was Defence Secretary. As this regarded advice to Ministers of the previous administration, the MoD Permanent Secretary looked into this and wrote to Sir Malcolm on 6th January 1998. The Permanent Secretary invited Sir Malcolm to visit the Ministry if he wished to refresh his memory. Both the invitation to refresh his memory and, indeed, to discuss the matter further stand and I reiterate them to your Lordships this evening.

The noble Baroness, Lady Park, asked me about the fitting of the black boxes to the Chinook fleet. It is a matter of regret that that programme is somewhat behind, but I understand that it is under way and I hope to be able to write to the noble Baroness telling her when we hope it will be completed.

The noble Lord, Lord Rathcavan, raised questions about other witnesses and the evidence that they might have given. The board took evidence from people who saw the Chinook flying at low level over Northern Ireland, not just around the Mull of Kintyre. There was no suggestion that the aircraft was in trouble. Indeed, if it was, the question arises as to why the crew did not make an emergency radio call. They made routine calls and therefore we know that their radio was working at the time.

The noble Viscount, Lord Slim, asked me about Chinooks grounded at the moment. The Chinooks are operating as normal. Individual aircraft can of course be grounded temporarily for different reasons and I am unable to tell the noble Viscount exactly how many are flying today. However, I shall write to him on that point.

The noble Earl, Lord Stair, has also raised questions about the helicopters fitted with FADEC on Exercise Gryphons Flight. I shall write to the noble Earl on the points that he raises.

I emphasise that the MoD has been willing consistently not only to examine any new material but to respond with an appraisal of it, fully and publicly. We remain more than ready to examine any further material that might be thought to offer new insights into the crash. The noble Lord, Lord Chalfont, asked me a very direct question. At a philosophical level, I am bound to say that the question he asked is quite impossible for any Minister to answer. The noble Lord knows that we are briefed honestly as Ministers and we give honest answers to the questions that we are asked. However, I say to the noble Lord that if he feels that there are points still outstanding after the briefings which I know he has had--and I address this point also to the noble Lord, Lord Burnham, and to the noble Lord, Lord Jacobs, who speaks from the Liberal Democrat Front Bench--I invite them not to another briefing but to discuss with me the outstanding issues that still concern them following the briefings that they have had.

My noble friend Lord Gilbert said in May 1997 that negligence is not a word that the RAF uses lightly. That is true, but it was the duty of the Air Marshals to give an honest decision based upon the evidence.

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I believe that that is what they did. The evidence produced by Computer Weekly does not persuade them or the MoD to reopen the inquiry.

Finally, I feel it is important to add my own personal sympathy to all of those who lost family, friends and colleagues in that tragic crash. So far as it is possible to do so, I try to understand the anguish that must be felt, in particular by the families of the dead pilots. I am very conscious that little of what I have said to your Lordships this evening will bring them any comfort. I remember also the families of the other victims who once again will have their memories stirred by reports of our discussions this evening. I am grateful to all your Lordships for the constructive way in which you have approached the debate. I undertake carefully to study all the remarks made. I reiterate the invitation that I made to noble Lords who remain unhappy after the briefings that your Lordships have heard to come and discuss those briefings with me.


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