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'The Inquiry therefore concluded that the cause of the accident was that the two pilots had wrongly continued to fly towards the high ground'". I concluded my intervention by saying: "I hope that when replying the Minister will devote some time to demonstrate to us to what extent the very high test in regard to the onus of proof is reflected in the decisions and is reflected, in particular, in the views of the two very senior officers who, on review, appear to have departed quite clearly from what was the initial finding".--[Official Report, 22/5/97; cols. 552-53.]

That hope was expressed in vain.

Being obstinate by nature, I returned to the charge in June 1998. On that occasion noble Lords did not hold a debate but considered a Starred Question. On

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that occasion noble Lords had the advantage of a contribution from the then Minister, the noble Lord, Lord Gilbert. On that occasion I asked the Minister:

    "My Lords, is the Minister aware that the relevant RAF regulation states that in only those cases in which there is absolutely no doubt should the deceased air crew be found negligent? Is the Minister satisfied that that very heavy onus was borne in mind by those who found negligence; or is a possible explanation that they reached their conclusion on the basis that it was highly probable that it was negligence".--[Official Report, 2/6/98; col. 179.]

The noble Lord, Lord Gilbert, replied:

    "My Lords, I can assure the noble and learned Lord that precisely those considerations were in the minds of the distinguished Air Force officers who came to the painful conclusion to which they felt compelled to come".

In what I have read out I cannot find anything to suggest that those precise,

    "considerations were in the minds of the distinguished Air Force officers".

Accordingly, I tabled a Motion to ask that the decision be set aside, but my noble friend Lord Chalfont beat me to it and, accordingly, I awaited this debate. I firmly support my noble friend. To exercise power without having it is an abuse of power, and that is what has happened in this case. I strongly support my noble friend's application.

8.23 p.m.

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

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

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

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

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

8.28 p.m.

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

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8.29 p.m.

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

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

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

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

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

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

8.32 p.m.

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

I simply add that the argument that this House does not have the resources for a further Select Committee is the weakest argument against one. If there is an

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

8.33 p.m.

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

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons we have discussed tonight, I was minded to support the noble Lord's original Motion. However, I did not believe that the time was right to make that decision this evening and thought that the Minister should have time to reflect on our deliberations. There are well known constraints on the

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ability of noble Lords to support further committees, and the views of the Liaison Committee would be helpful. I agree with the noble Lord, Lord Wallace of Saltaire, that if noble Lords decide that there should be a select committee, we will find the necessary resources.

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

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

8.41 p.m.

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

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

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

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

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were to the mull. Given the deteriorating weather and the strict visibility requirements under visual flight rules, they should by this time already have chosen an alternative course. Immediately, they could and should have either turned away from the mull, or slowed down and climbed to a safe altitude.

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

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

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

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

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

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

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

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