rose to move, That the draft order laid before the House on 1st May be approved [28th Report from the Joint Committee].
My Lords, your Lordships will be aware that Parliament is asked to consider an order of this nature in most years. The purpose of the order is straightforward. It continues in force for a further year the Army and Air Force Acts 1955 and the Naval Discipline Act 1957. These three Acts provide the statutory basis for discipline in the Armed Forces. The Government therefore attach the utmost importance to this order as the means of ensuring that this key legislation remains in force. The order was approved yesterday in committee in another place and I hope that your Lordships will follow suit.
Having just highlighted the importance of the order, it is perhaps appropriate for me at this stage to offer a few remarks on the amendment that has been tabled by the noble Lord, Lord Chalfont. The noble Lord's amendment asks your Lordships to withhold approval for the Motion on the Order Paper until the Government have responded to the report of the Select Committee on Chinook ZD576.
Your Lordships will know that the noble Lord, Lord Chalfont, and other noble Lords have raised the issue of the Government's response to this report on a number of occasions. The Select Committee's report was published on 5th February this year. The Government have consistently said that they intend to respond to the report before the six months allowed for responses to such reports have elapsed. That remains our intention. We fully expect to publish our response before the House rises. The Select Committee's report is a detailed assessment of a set of complex technical, legal and airmanship issues. It is quite right that it should be fully and carefully assessed, and we are doing this.
As noble Lords may know, we have commissioned further work from Boeing. While I understand the wish of the noble Lord, Lord Chalfont, for a speedy response, it is important that this work is fully and thoroughly completed. Boeing's work is nearing completion and should be available to us shortly. Subsequently this will be taken into account in our response.
The implications of supporting the amendment of the noble Lord, Lord Chalfont, if he were to move it to a Division, would be very serious. Unless the draft order has been approved by both Houses of Parliament and approved by Her Majesty in Council before 31st August, the service discipline Acts will expire. The significance of this will not be lost on most of your Lordships, but I must spell out some of the consequences.
I say straightaway that the effect of the amendment could not be confined to the Royal Air Force alone, although that is what it seeks to achieve. Even if that were the effect, it would not be acceptable to the Government. As it is, however, if the amendment were to be carried, it would mean that the draft order, which covers all three services, had not been approved. Therefore, if the amendment were passed, there would clearly no longer be statutory authority for the maintenance of discipline in all three services. Commanding Officers would have no authority to back up their orders with sanctions; service personnel would be able to walk away from the job or disobey orders without any of the consequences associated with the requirements of disciplined Armed Forces.
The Acts do not deal with discipline alone. They provide the authority for most recruitment. The amendment would take that away. There are all kinds of other administrative matters of importance to our Armed Forces which hang on the provisions of the Acts. These, too, would be affected by the amendment.
But there is an even more fundamental point. Constitutionally the service discipline Acts are regarded as Parliament's agreement to the maintenance of the Armed Forces. In consequence, the effect of your Lordships' House deliberately allowing the expiry of these Acts would amount to the withdrawal of that approval. Obviously no government can regard such a prospect easily, nor, in my view, will this House—nor, indeed, will the noble Lord, Lord Chalfont. I am sure that he will use this debate to make his legitimate points on the very important issue which has prompted him to table the amendment. I hope that he will then withdraw it.
Returning now to the substantive Motion, the only years in which we do not generally consider an order such as this is when the three service discipline Acts are themselves up for renewal. This is achieved by the five-yearly Armed Forces Bills. The passage of these Bills through Parliament enables us to review as well as renew the discipline Acts. The present draft order is presented under powers in the Armed Forces Act 2001. The next Armed Forces Bill is due to be introduced in 2005–06.
There is one comment that I should offer about the order itself. The Government have given an undertaking that Ministers moving instruments which are subject to the affirmative procedure will tell the House whether they are satisfied that they are compatible with the rights provided under the European Convention on Human Rights. That undertaking, which covers this order, broadly mirrors the procedure for certifying primary legislation set out in Section 19 of the Human Rights Act 1998. Nothing in this order is incompatible with the ECHR. The continuation order which your Lordships are being invited to approve today is a brief document. It raises convention issues only in that it continues in force Acts that have been considered compatible with convention rights.
However, the European Court of Human Rights took the view in its recent judgment in the case of Morris v the United Kingdom that the procedures for post-trial review provided for in the service discipline Acts are not compatible with Article 6 of the convention. The court considered that the involvement of non-judicial authorities in the review of court martial findings and sentences impaired the independence of the court martial, even though that process is intended to safeguard the accused.
We have been considering how to react to this judgment and it might have been expected that we would have announced our intentions by now. However, the issues concerning post-trial review were given a fresh airing in a hearing last week before your Lordships' House in its judicial capacity. It seems appropriate to await their Lordships' judgment before taking a decision on the future of the review procedure. We shall of course make an announcement as soon as possible. The best advice that we have is that the decision of their Lordships is not likely to come before July and it may be later. If it is not July, it will be the autumn.
As I have already mentioned, it is essential that this order should be approved. It is about continuing the legislative basis for discipline in the Armed Forces. However, as your Lordships will know, the order continues three separate Acts of Parliament, one for each service. The Government have made clear their intention to alter the structure of the legislation, the better to fulfil the needs of the services and the way in which they will operate in the future. We have stated that we wish to replace the three separate Acts with a single tri-service Act. As I know of the interest in the House in seeing this come to fruition, this may be an opportune moment to provide a brief report on progress.
Following preliminary scoping work, a tri-service Act team was set up within the Ministry of Defence last September. The team is about half-way through the policy development stage, which is largely concerned with examining the differences in statutory provisions and in procedures between the services and considering how best to reconcile them.
The aim in this work has been to consider the impact of the existing legislation in the context of the increased level of inter-service co-operation, both on operations and elsewhere. This provided the impetus for the tri-service Act project in the first place. However, for most of the time most members of the Armed Forces will clearly continue to work and live in single service environments. We need to find a solution that supports operational effectiveness in both joint and single service settings.
Although discipline is a central focus of the team's work, it also has to consider other areas covered by the present legislation, such as terms of service, grievance procedures and arrangements for boards of inquiry. Some of these raise complex issues, particularly as we should like to see the tri-service Act lead to improvements in the way we do our business, over and above those to be expected simply from rationalising the legislation. We appreciate also that the benefits to be gained from the tri-service Act should not be achieved at the cost of a detrimental impact on the ethos of the single services. We expect to receive the final report from the policy development stage next spring. This will provide the firm basis for translating policy intentions into the new legislation, although I am sure that there will still be much detail to be resolved.
The next five-yearly Armed Forces Bill is due in the 2005–06 Session. Your Lordships will, I hope, understand that no commitments can be given at this stage as to when the tri-service legislation might be introduced, as this will be subject to the availability of parliamentary time. A factor here is that we are certainly talking about a very large Bill, perhaps containing between 300 and 400 clauses. Quite apart from the issue of finding a legislative slot, our overriding objective is to get this important legislation right. There is much more involved than mechanistically sticking the three present Acts together—and we are not interested in adopting a lowest common denominator approach.
Against this background, I am unable to offer any prospect at present that the legislation might be presented to Parliament in the 2003–-04 Session, as was suggested in last Session's report of the Select Committee on the Armed Forces Bill in another place. We shall keep timing under review. However, the resources that we have allocated to this project and the progress made so far mean that we are on track to achieve the Ministry of Defence's overall schedule. This is based on being ready for the 2005–06 Session, should parliamentary time be available then.
The need for a tri-service Act derives from the importance of having a better disciplinary framework in those many circumstances where the services work so well together. However, I can assure the House that service discipline today is in good order, as is the operational effectiveness that it serves to underpin.
We see this in Afghanistan and elsewhere. I am pleased to take this opportunity to pay the warmest possible tribute to the personnel of the Armed Forces serving in the most challenging of environments. The qualities that they display are founded in large part on firm and fair discipline, the legislative basis of which we are discussing this evening. I know that these qualities are fully valued in all parts of this House. I invite your Lordships to approve the order. I beg to move.
rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert, "this House declines to approve the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 in respect of the Air Force until such time as Her Majesty's Government have responded to the report of the Select Committee on Chinook ZD576".
My Lords, I am fully aware of the significance of this amendment. Indeed, had I not been, I should not have tabled it. If it were pressed to a Division and carried, it would mean, as the Minister said, that from 31st August Parliament's approval to the continuation of the Armed Forces—particularly the Royal Air Force, although the Minister says that it would apply to all three—would be withdrawn. That would be a drastic step. Your Lordships know me and my record well enough to know that I find such a step difficult to contemplate. However, I am concerned to demonstrate that it is a step which a sovereign Parliament is constitutionally empowered to take. Your Lordships could, in fact, take it tonight. I am not, however, about to suggest that your Lordships should actually take that step, merely that we should remind the Government, and especially the Ministry of Defence and some of its officials, of the existence and importance of the constitution and of Parliament's place in it.
My principal aim in tabling this amendment is to suggest that in the matter of the Select Committee on the Chinook helicopter crash we are now dealing with a matter which has constitutional implications. There is no place in this issue for concepts like "airmanship" or "the chain of command", important as they may be in the services. This is a matter of natural justice and constitutional propriety, and these are the important issues. I am no lawyer or authority on the constitution, but if I have misunderstood the position there are those in this House who are qualified to put me right.
As I understand it, in this country executive institutions, including departments of state, have their source in a constitution which, even if it is unwritten, is to be obeyed and not departed from at the whim of the government of the day, of whatever complexion—which means in effect that we have in this country a government of law, not of men. In that context I should like this House to see the response of the Government to the Select Committee's report before it approves the continuation in force of the Air Force Discipline Act.
The constitution, according to Dicey, the great constitutional lawyer, rests upon two pillars—parliamentary sovereignty and the rule of law. These twin pillars are reflected in the draft order that your Lordships are being asked to approve today. My amendment is designed as a reminder of those two principles. It seems to me that the attitude of the Ministry of Defence in the case of the helicopter crash displays a somewhat cavalier attitude to both.
I need hardly remind your Lordships that this saga began in 1994 when a Chinook helicopter crashed on the Mull of Kintyre, killing the aircrew and all 25 passengers. After a Royal Air Force board of inquiry had initially failed to establish a cause for the accident, the reviewing officers, Air Marshals Day and Wratten, decided that it was due to gross negligence on the part of the two pilots, Flight Lieutenants Tapper and Cook.
After much controversy, a Select Committee of this House was set up to consider whether this verdict was justified. On 31st January this year, it delivered a report which came to the unanimous conclusion that,
"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
It is not my intention today to go into any further detail on the Select Committee report or on any other aspects of the helicopter accident. This is not, as someone rather rudely suggested in the House Magazine, a peg on which to hang another Chinook debate. But, according to the Companion, the Ministry of Defence—as has been confirmed by the Minister—has six months to respond to the report. It is somewhat surprising that it needs quite so much time. The obvious response to the unambiguous report of the Select Committee is to set aside immediately the verdict of gross negligence. However, one would normally wait, with whatever patience one could muster, until the response was forthcoming. But there are reports from sources that I would normally regard as reliable that, in spite of the Select Committee's report, there is no intention of setting aside the air marshals' verdict.
If that is true, it seems to me that it runs counter to the constitutional principles both of parliamentary sovereignty and of the rule of law. But it would not be entirely surprising, since the Ministry of Defence virtually ignored the report of the Public Accounts Committee in another place, which also questioned the validity of the air marshals' verdict, leading the chairman of the Public Accounts Committee to accuse the MoD of "unwarrantable arrogance". I do not go so far as that. Incidentally, the Ministry of Defence has also ignored the finding of the fatal accident inquiry in Scotland, which came to the same conclusion; namely, that there was no evidence to indicate negligence on the part of the pilots. This seems to me again to be showing little concern for the rule of law.
A further negative response from the Government would signify that the verdict of two air force officers is to stand in spite of the fact that a Select Committee of this House has decided that it is in effect unlawful. That is a decision which this House would naturally wish to debate. The Select Committee was set up after a substantial majority in this House voted for it. If its report is to be rejected or ignored, the House may have something to say about that. The Ministry of Defence insists that no decision has yet been made. In that case it may want to take this into account before arriving at its decision.
We were told by the Minister on 1st May that the Government hoped to have their response ready for debate in this House—if indeed a debate were necessary—before the Summer Recess. Evidently, from what the Minister said, that is unlikely to be so. Perhaps he will confirm that in his reply. If the report is not received by your Lordships' House within a very short period, there will be no time for the debate before the Summer Recess that we had been led to believe there would be. Your Lordships would therefore not have an opportunity to debate the important issue of the Ministry's response to the report of the Select Committee before, at the very earliest, October.
I conclude on an important point. I recognise that the Government are not obliged to accept the report of a parliamentary Select Committee. I fully recognise that. I do not agree with it. I think that it is offensive to anyone who believes in the importance of constitutionalism. However, it is the case and we have no way out of it. Perhaps the only way of persuading the Ministry of Defence to respond positively to the report is to use the constitutional means which I am using today to underline the sovereignty of Parliament and the rule of law, and to express the hope that the Ministry of Defence will have full cognisance of both as it comes to its final decision.
As I said, my principal aim in moving this amendment is not to cause disruption in the Armed Forces or to damage national security, but to draw attention to the constitutional dimension in this matter, to give noble Lords an opportunity before October of expressing their views on the MoD's handling of this whole tragic affair, and perhaps to give the MoD a constitutional reason why it should accept the report of the Select Committee of your Lordships' House. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert, "this House declines to approve the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 in respect of the Air Force until such time as Her Majesty's Government have responded to the report of the Select Committee on Chinook ZD576".—(Lord Chalfont.)
My Lords, when this matter was first discussed in your Lordships' House a few years ago, in the wake of the Chinook disaster, I believed that I was right in supporting the noble Lord, Lord Chalfont. In fact, I went to the site of the accident and met lots of people, including those who were there that evening when the helicopter crashed. They all believed that the weather that day had played a great part in the accident.
I have a little house in County Antrim, on the shores of Murlough Bay, 11 miles from the Mull of Kintyre. Last weekend and the weekend before—and probably this weekend, too—one could not see the Mull of Kintyre at five minutes to noon because of the clouds. At 12.10 p.m., however, it was totally clear. At 12.20 p.m., the clouds had returned. That is how it is there. I shall not get involved in the issue of whether the Chinook had defects. However, I am quite prepared to accept that the weather conditions played a part in the disaster.
I have met many of the widows of those killed in the disaster. Like me and the noble Lord, Lord Chalfont, they feel that it is absolutely unfair to blame those two young pilots for crashing their helicopter into the Mull of Kintyre. The situation has placed a burden on their families—on their fathers, mothers and other relations—but most of all on their children, who now carry the burden of claims that their fathers are responsible for causing the death of the 28 officers on the flight.
When the Select Committee reported, I thought that that would probably be the end of the matter. A Select Committee composed of Members of your Lordships' House examined in great detail every aspect of the facts surrounding the crash. I believed that the MoD would have to abide by the report. From what I have heard since, however, it seems that the MoD has its back to the wall. It is not going to give way one inch on the findings of the two air marshals. I am certain that some noble Lords will defend the two air marshals in this debate. However, there are those like the noble Lord, Lord Chalfont, and me who will tenaciously pursue this case until the pilots are cleared or we have to accept without a shred of doubt that they are guilty of gross negligence. There is no way in which I and many others in that community can be convinced that the two pilots were so unconcerned about their duties that they mistakenly, drunkenly or in any similar way flew into the Mull of Kintyre.
The Ministry has taken the view that it must accept the Air marshals' findings. However, the two air marshals are as capable as anyone else of misinterpreting the facts of the disaster. No one is saying that they are God and must be right. They were not on that helicopter. Regardless of the reports that they have read in the MoD, it is not beyond question that they are right. I do not believe that they can prove beyond the shadow of a doubt that those two young pilots are guilty of gross negligence which led to their death and the death of their comrades.
It has been suggested that the noble Lord, Lord Chalfont, believes that the Select Committee report should be accepted. I should hope that it will be. However, if it is not, it should be debated on the Floor of the House. We can then decide whether to accept findings unanimously accepted by 12 noble Lords. The Select Committee examined every aspect of this terrible accident, and I believe that its report should be accepted.
I know that we shall hear from people in the military about the matter. The military has a view on this, and the military has its back to the wall. It will want to defend its position. However, millions of people in this country are not in the military and do not abide by every diktat from air force and MoD officers. The first investigation into the matter, conducted in Scotland, found that it could not be proven beyond doubt that the pilots are guilty. However, the Ministry and the air marshals contradicted that and gave their verdict.
The Chinook disaster has had an awful effect on the people of Northern Ireland. Most of the young people killed in the accident—the 28 police officers—had been conducting a war against the greatest terrorist organisation that these islands have seen. Those young police officers had dedicated their lives to eradicating terrorism in Northern Ireland. That is why the Chinook disaster and everything surrounding it has had such an effect on the people of Northern Ireland.
As I said, I have repeatedly met the widows of the two pilots and the widows of the police officers killed in the tragedy. If the Government are not prepared to say that they will accept the Select Committee's findings, let the whole issue be debated in this House. Let us all have a say on what we know about the circumstances relating to this disaster.
I believe that the noble Lord, Lord Chalfont, in his tenacious attitude to pursuing this case, is carrying on a campaign which I believe will have the support of the overwhelming majority of the people living in these islands.
My Lords, along with so many of your Lordships, I have taken naturally enough a close interest in this tragedy and in the subsequent handling of the inquiries as I happened to be Secretary of State for Northern Ireland at that time and knew many of those who lost their lives and met the families of the two young flight lieutenants subsequently.
I congratulate the noble Lord, Lord Chalfont, on his ingenuity in finding this vehicle as a means of putting some ginger under the tail of the MoD because, after all, the report was delivered on 31st January. Some four-and-a-half or five months have passed and there is still no response from the Ministry of Defence. I sympathise warmly with the sentiments that the noble Lord, Lord Fitt, has just expressed. They come very much from the heart.
It is, however, possible to look at the issue before us tonight a little more clinically by reminding ourselves of the terms of reference of the Select Committee which were to consider,
"the justification for the finding of those reviewing the conclusions of the RAF Board of Inquiry that both pilots . . . were negligent".
The committee was not tasked by this House to find out what happened and what caused the crash. How could it have been so tasked? It would be quite beyond it. It was narrowly tasked in that way. It identified the question to be answered at paragraph 147 of its report on page 33. It states that,
"the question to be answered is whether there is absolutely no doubt whatsoever that they [the pilots] ought to have foreseen that their action would in all probability occasion the final event".
Those were the words of the RAF's own rules at that time—"absolutely no doubt whatsoever".
The committee concluded—let us not forget that it was headed by no mere tiro in this kind of matter; it was headed by the noble and learned Lord, Lord Jauncey of Tullichettle, a retired Lord of Appeal in Ordinary—at paragraph 174 that in the light of all the evidence before it, and having regard to that very high standard of proof,
"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
It is perfectly true and only fair to acknowledge that the committee had before it some evidence which was not available for one reason or another to the air marshals. I ask the Minister when he replies to confirm that the evidence relied upon by the committee in coming to its conclusion was not limited to evidence that was freshly before it and was not available to the air marshals but that there was other evidence, which it identifies, which led it to the conclusion that it reached. If the Minister will confirm that, I should be grateful. If he cannot confirm it, it would be good to know why he cannot do so.
What is the purpose of commissioning further evidence or further information from Boeing? What are the particulars of what it is being asked to do? Why is it being asked to do that now? Can the Minister give an undertaking that when the response is ready it will be brought before this House in time for a debate to take place before we rise on whatever date in July that will be? Finally, can the Minister confirm that if the response fails to shake, and therefore to reject, the finding of the committee, the appropriate amendment to the records of the two young officers will be made within the MoD?
My Lords, Parliament is being mocked by the executive. The noise of feet being dragged, so as to cause unjustified delay, is becoming quite intolerable. The Motion of the noble Lord, Lord Chalfont, is a rare opportunity to draw this Parliament's attention to the position.
To put the matter in its proper perspective perhaps I may, quite shortly, refer to some background facts although they are well known to your Lordships. As has been stated, on 2nd June 1994 RAF Chinook helicopter ZD576 crashed on the Mull of Kintyre. RAF rules in force at the time provided that the deceased air crew could be found negligent only where there was "absolutely no doubt whatsoever". I stress the words of emphasis—"absolutely" presupposes and emphasises that the doubt is unqualified and unrestricted. Doubt is not limited to cases of "reasonable doubt". The final word "whatsoever" makes clear that there can be no doubt of any kind; the onus requires certainty. There is clear justification for this. The board of inquiry takes place in private. The deceased's family is not entitled to representation. There is no appeal. No member of the board is legally qualified as in courts martial, whose function it is to ensure the legal validity of the decision.
During the debate of 5th March 2001—which was the first application for the appointment of the Select Committee—my noble and gallant friend—indeed my boss or the nearest I am likely to get one—Lord Craig of Radley said that the board of inquiry was not a court of justice. Its overriding concern was to discover what happened. Indeed, today a board of inquiry is not entitled to apportion blame in the case of a deceased pilot.
The RAF investigating board concluded that the most probable—I underline those words—cause of the accident was that the crew had selected an inappropriate rate of climb to overfly the Mull. However, the investigating board made no finding of negligence on the part of the pilots; nor did the two station commanders who reviewed its findings. Nevertheless, the two air marshals, to whom the investigating board's report was submitted, concluded that the pilots were guilty of gross negligence in that they failed to take appropriate action when approaching deteriorating weather near the Mull. That is tantamount to a finding of manslaughter.
Nearly two years ago your Lordships appointed a Select Committee to consider whether that finding was justified, and to complete its report by 31st January 2002. I refer to the decision, which, as your Lordships will recall—it has just been referred to—itself made clear that the,
"finding of negligence against ... the applicable standard of proof, which required 'absolutely no doubt whatsoever'. In the light of all the evidence before us, and having regard to that standard, we unanimously conclude that the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
My noble friend Lord Chalfont sought leave to raise a PNQ against the executive, the Government, as to how it intended to respond to this report. With characteristic courtesy, the noble and learned Leader of the House wrote to my noble friend on 5th February 2002, explaining why he had refused to accept the PNQ; namely, that it would be quite inappropriate for the executive to make any kind of response until it had had time to read the report and to consider the recommendations. I in no way criticise that decision.
The noble and learned Lord went on to give two virtual assurances: first, that the executive would not drag its feet in replying to the report; secondly, that once it had responded, there would then be an opportunity for the House to debate both the report and the executive's response, and that he, the noble and learned Leader of the House, would through the usual channels request an early date for the debate. That looked very hopeful.
In a Starred Question only last month, my noble friend Lord Chalfont asked the Government whether they expected to provide a response to the report before the Summer Recess. The Minister stated:
"The Government have said they intend to respond to the Select Committee's report before the six months allowed for response to such reports have elapsed. That remains its intention. Moreover, I hope that it will be possible to publish our reply and debate the issue in your Lordships' House before the Summer Recess".
We have now heard from my noble friend Lord Chalfont that the executive's response to the Select Committee's report is not likely to be available for debate in the House before the Summer Recess, taking full advantage of the six months without giving us any details as to why all that time is necessary.
In the debate on 30th April 2001, in which the second and successful application was made for the appointment of a Select Committee, the noble Baroness, Lady Young, said:
"... this is a constitutional matter. It is a duty of the House of Lords, as the legislature, to hold the executive to account".—[Official Report, 30/4/01; col. 1596.]
For the verdict to be considered valid, two requirements must be satisfied. They are, first, that the air marshals must have concluded that,
"there was absolutely no doubt whatsoever that the pilots were guilty of gross negligence" and, secondly, that if—I underline that word—they did so conclude, there must be adequate material to support such a conclusion.
I deal with the first of those two requirements, which the executive has absolutely no chance of satisfying. It was my submission on 5th March and also on 30th April 2001 that the verdict reached by the air marshals was quite simply unlawful because it was made beyond their power. In forensic language, it was ultra vires and, for that reason, had to be set aside ex debito justiciae—"because justice so demands". It is not a question of discretion. The decision is a nullity. That is simply because the air marshals did not purport to say that it was one of those rare cases in which there was absolutely no doubt whatsoever that the deceased pilots were negligent. The nearest they got to that, albeit a long way off, was that Air Marshal Day said:
"The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation, in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".
I interpose to stress the following words:
"In my judgment, none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".
In other words, it was being said that none of the factors or scenarios was of sufficient strength to provide a likely explanation. That has two consequences. First, it puts the onus on the deceased, which is wrong. Secondly, it deals with probabilities. It does not even deal with reasonable doubt, let alone certainties. That is the only material that the air marshal vouchsafed as his reason for exercising his power. His senior officer, Sir William Ralten, added nothing at all. However, Air Marshal Day to some extent gave the game away when he stated:
"Therefore, while aware of the difficulty of attributing negligence to the deceased air crew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".
"Difficulty", the word that he uses, is a gross understatement of the task that faced him. What faced him was a near impossibility, and that is something that he did not address.
The only other part of the judgment which I think is worthy of quoting is:
"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud-covered high ground".
I entirely agree that it is incomprehensible, which shows that it cannot have been a situation in which there was "absolutely no doubt whatsoever".
My submissions to your Lordships on 30th April and 5th March 2001 were never challenged. They were specifically supported by my noble and learned friend Lord Lloyd of Berwick, who emphasised that the first requirement raised a legal, rather than a factual, question and that it was a relatively short one. I had the privilege, as is often the case, of sitting next to my noble and learned friend, the former Lord Chief Justice, Lord Lane. He voted for the setting-up of this committee and I know that he accepted what I submitted.
The reference in the Motion to the Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 is a shot in our locker which I had hoped could have been used following—I emphasise the word "following"—the anticipated refusal by the executive to set aside its verdict. Perhaps one of the stimuli to the foot-dragging operation has been to ensure that the obligation to make the order arises before rather than after the executive's decision.
I end by saying that I hope that, in the course of this debate, the House will thoroughly deplore the executive's near contemptuous treatment of Parliament—a very depressing indication of worse to follow.
My Lords, I shall be very brief. I did not consider that tonight was a suitable occasion on which to go into detail on the findings of the board of inquiry or the Select Committee. I believe that the time to do that is when the report is available.
However, it is worth reminding your Lordships that, in spite of all that has been said tonight, no fewer than, I believe, 10 Ministers of the Crown have stood at Dispatch Boxes in this and the other House and upheld the findings of the original board of inquiry. I believe that that, of its own, is sufficient to suggest that there must be more than one view on the matter. That is not surprising. Even noble and learned Lords of the very highest legal repute do not always see eye to eye. Therefore, I believe that it is right that we wait for the response of the Ministry of Defence. We shall then be in a better position to debate this subject.
However, any doubt about the intention of Parliament to proceed with the continuation order is wholly unacceptable. The services are under very great pressure, as all sides of the House have acknowledged on many, many occasions. However well-intentioned the protagonists for the amendment of the noble Lord, Lord Chalfont, may be, I abhor any attempt to detract from the wholehearted support that this House should give to the Armed Forces.
My Lords, I agree entirely with the point that the noble and gallant Lord, Lord Craig, has expressed. The noble Lord, Lord Chalfont, presented his amendment as a means of securing from Ministers a pledge that there would be a debate. Unfortunately, we have already had the debate in large measure this evening. We shall need to have a serious debate because there are various sides to this story, as the noble and gallant Lord, Lord Craig, has indicated.
My regret in relation to the amendment is that debate on the order presented an annual opportunity for the House to pay tribute to the Armed Forces for their work over the past year. Over that time, our Armed Forces have served in various and very different ways both the country and the cause of international peace and stability with success and distinction. I believe that in large measure the amendment would have deprived us of an opportunity to offer words of tribute. I hope that the House will recall that the order is normally something of a formality. But the formality should at least provide an opportunity for tribute to be paid without qualification, and I hope that the Minister will recognise that.
It is perhaps more appropriate for this House to offer comments. A few moments ago I counted up and calculated that, of the Peers present in the Chamber during the debate, approximately 20 have served in the Armed Forces. I believe that if there were a debate in the other place now, one would be lucky to find more than two or three Members present. Therefore, it is perhaps particularly appropriate that words of commendation are expressed during this debate.
My Lords, I had not intended to speak in this debate, simply because I do not have the experience of people such as my noble and gallant friend Lord Craig of Radley and I do not have the background information that Ministers and former Secretaries of State for Northern Ireland have. However, for a considerable number of years I served as a commissioned officer and I suppose that I could claim to have been on active service continuously for 11 years. With the exception of those who flew with the Royal Air Force, I believe that I could safely claim that, within your Lordships' House, I have spent more hours in the air in helicopters than most.
What disturbs me about this evening's debate is that the constraints that the processes and procedures of this House place on the noble Lord, Lord Chalfont, whose dignified presentation of his case must have impressed us all, are such that we cannot move forward as expeditiously as we should on this extremely serious issue.
As someone who worked for many years with those who fly our helicopters, and who did so under very difficult circumstances in Northern Ireland, the one thing to which I can bear personal witness is the competence and discipline of those people. I have always found it difficult to believe that not one—so often I flew in a helicopter with one pilot—but, in this case, two experienced pilots could have made the type of mistake that it appears to many of us was summarily decided that they made. That is unreasonable.
Again, I have the disadvantage of having no technical knowledge in terms of aircraft and helicopters. But, like your Lordships, I can read the reports of faults that occur in Chinook helicopters. Hence, from experience, I would deduce that the cause of that horrific crash was far less likely to be pilot error than some external problem. I hope that your Lordships recognise that many of those killed in that helicopter were acquaintances and friends of mine. Therefore, I should like to see a proper, considered response to the tragic event of 1994.
I heard the Minister caution what the outcome would be if the amendment were carried tonight. I understand that. I would not be at all desperate for this matter not to be pressed to a Division in so far as my experience of military life is that discipline is not a diktat but a culture within our armed services. I do not believe that it is beyond the competence of the House, if the Government remained adamant that the amendment would delay the process of justice in respect of the Chinook disaster, to ensure that the Government returned to the House long before August to put right what I believe is wrong. The Government could also bring forward new legislation—so that there would be no crisis within the armed services.
We have a responsibility not to add up the number of Ministers who have remained solid in their support of the Ministry of Defence and the Government's attitude but to examine the breadth of available experience. I am envious of members of the Select Committee having the opportunity to examine and weigh up the facts.
I shall not incite the House to a form of rebellion. Perhaps my military service makes me recognise the need for things to move forward with a degree of order. However, I implore the Minister, when he responds, to remember the many people involved—not just the two pilots and their families. In so far as the pilots stand condemned by their own service, I feel most for them—but 26 others were involved in that disaster. Their families also deserve some sort of comfort from knowing that the executive is not hard nosed but has compassion. I ask the Minister to remember that this evening.
My Lords, the House will be grateful to the Minister for giving it a preview of the various actions that the Government propose in regard to consolidation of various Acts that now exist separately—which he did with some force. On the basis of my experience of the Palace of Westminster over the past 50 years, I thought that the Minister rather overdid it. Everybody knows perfectly well that if the Government wish to get through an Army Act—whatever happens to the Motion—they would anyway. The Government have the machinery to do so—even extra parliamentary machinery. The Government have the Prime Minister sitting in the seat of active power—and he does more or less what he likes anyway. Anyone who thinks that the whole future of the Army, Air Force and Naval Discipline Acts will be affected by the amendment in the name of the noble Lord, Lord Chalfont, is looking through the wrong end of a telescope. Such a thing cannot be conceived and would not happen. I expect that the Minister himself knows very well that, whatever happens, the new Act will go forward and the entire Armed Forces would not be paralysed. One can overdo scare nonsense too much.
We are really talking about a question of law. I draw your Lordships' attention to the rule in force at the time of the accident—which is to be found at paragraph 13 on page 7 of the report:
"The RAF manual of flight safety AP 3207 published by the Inspectorate of Flight Safety and in force at the time of the accident provided in paragraph 9 of Annex G to Chapter 8 that 'only in cases in which there is absolutely no doubt whatsoever should deceased air crew be found negligent'".
To me, that statement is clear.
With controversy raging in varying degrees over the past eight years, according to the pressure applied by the noble Lord, Lord Chalfont, the cause of the accident has been a matter of dispute. The efforts made to ascertain the truth over the past eight years mean that there is already doubt. That is implicit even in tonight's debate, in which different views are being expressed. It is clear that there are already grounds for reasonable doubt. The existence and continuation of debate on the subject over eight years proves that the matter is far from settled.
I shall forebear going into the legal aspects, which have anyway been dealt with by one of the finest lawyers that this country has ever known—the noble and learned Lord, Lord Ackner. I prefer to take an entirely different view. I have always been under the impression, since being in practice and in the Armed Forces for six years—with some flying experience—that an Englishman's word is his bond. It is not necessarily a question of law. Progressively over the years, this country has lost that sense that an Englishman's word is his bond, if something else exists. That is the kind of situation that I, as a Briton, cannot tolerate. There must be some regaining of the sense of honour—making due allowance for the views of some of one's friends and political associates, who may disagree. In the finality, that is where the role lies.
The time will return, hopefully shortly, when an Englishman's word is generally recognised—not as a matter of law but of normal practice. For that reason, I hope that the efforts of the noble Lord, Lord Chalfont, meet with success. They certainly have my support and those of all people who have any regard for what has hitherto been regarded in this country as normal and civilised behaviour, lived in accordance with ordinary moral principles.
My Lords, I warmly support everything that my noble and learned friend, the noble and learned Lord on the Cross Benches and the noble Lord, Lord Chalfont, said. Precisely because we all greatly love and respect the Armed Forces, for whom we often speak when they cannot speak for themselves, it is essential that the Government should not give even the appearance of dragging their feet and kicking the debate, practically speaking, into the distance. Not only noble Lords, but also the men and women of the armed services, will note with deep regret the Government's failure to give as early an answer as possible to such a major and unequivocal conclusion as the report furnishes.
I feel that any further delay is wholly unacceptable. The Government say that we will have a debate by the end of the summer. That will prolong the whole process and it will be November before we can debate it. Already eight years have passed and soon it will be nine. I beg the Government to think hard before they behave in that way.
My Lords, I have taken part in debates on many orders and I believe that this is one of the longest with which I have been associated. It will also probably receive the most amount of press coverage. The only order that I can think of that received any press coverage was one that removed the offence of a landlord serving more than a pint. Apparently it was illegal to give more than a pint.
The order before us is uncontentious. I do not believe that any noble Lord has spoken against the order. On these Benches it has full support. I echo the words of the noble Lord, Lord Hardy of Wath. This is an opportunity to commend the work of our Armed Forces. I had a number of questions for the Minister about a forthcoming Army Act but he answered those in his introduction to the order.
I also echo the words of the noble and learned Lord, Lord Mayhew, who said that this was an ingenious opportunity for a debate to be brought forward on this subject. I realise, as the noble Lord, Lord Chalfont, said, that this is not just a peg on which to hang a debate about this terrible tragedy but an issue that he believes has constitutional implications. I take on board that sentiment. However, only two questions appear to have been raised this evening: one, whether the Government will publish the report before the Summer Recess; and, two, whether the House will be given the opportunity to debate that report before the Summer Recess? I hope that the Minister will be able to answer those questions.
My Lords, I am most grateful to the Minister for moving the order. On these Benches we naturally support it for the reasons that the Minister so clearly identified. The House welcomes the Minister's statement concerning the government response to the House of Lords Chinook report ZD576. We on these Benches want to debate the response before the Summer Recess. I agree with what your Lordships have said. It has taken too long and we should debate the response before the recess. I agree with the reasons given by the noble Lord, Lord Chalfont, and I agree with what my noble and learned friend Lord Mayhew said. I prefer to say no more on the issue now and to keep what I have to say for the debate on the Government's response.
The continuation order represents an occasion when some associated matters can be included in the debate, although I shall keep my contribution short. I am most grateful to the Minister for bringing us up to date on the tri-service Act. Will he confirm that there will be advance consultation with Parliament at various stages of preparation of that new Act?
During the past 10 years there has been increased emphasis on joint aspects of all three armed services. Because of that, the need for further continual amendments and a tri-service Act has developed. During the drafting of that Act it will be important to ensure that due to the nature of the three services and their different roles there may be a need to introduce some parts of the Act which will be applicable only to a specific service. To support that comment, the Chief of the Defence Staff said that we should recognise the tolerable variation that needs to exist between the three service environments. However, to wait another four years, as the Minister indicated, seems an exorbitant length of time.
It must be recognised that the way of life in the Armed Forces is very different from that of civilian life. The temptation to tinker with the discipline of the Armed Forces must be resisted at all costs when drafting the new tri-service Bill. The new Act will be of such importance that we should try every way to retain the effectiveness of the military discipline system, ensuring that commanding officers retain their full powers.
I take this opportunity to comment on the Human Rights Act and some aspects affecting Armed Forces military law which did not comply with the European Convention on Human Rights. I am aware that the Minister has touched on that subject. Changes were made to existing military law and although they achieved the object of retaining summary powers of jurisdiction and custody before trial, they also undermined the authority and effectiveness of a commanding officer as did a number of other changes.
Your Lordships are well aware that morale is built of various components and a large component is military discipline. The efficiency and the state of morale of a regiment is the sole responsibility of a commanding officer and for that reason such power is vested in him. If we undermine that power and authority we shall destroy the ethos and morale of regiments and we shall be left with inefficient units that may not be successful in times of conflict.
I wish to touch on one aspect of the International Criminal Court, which rightly caused so much concern in your Lordships' House. Part of the Act deals with actions taken by military commanders in times of conflict and could have led to those military commanders being arraigned on charges by a foreign court. By signing up to retain jurisdiction over our own Armed Forces it denied the right of any foreign government to bring charges against a UK serviceman or woman until the case had been investigated by our own United Kingdom authorities. If the United Kingdom decides that there is no case to answer, I understand that that is the end of the matter and no European court would have any jurisdiction. Can the Minister clarify the situation and explain why we did not take advantage of Article 124 of the Rome statute which would have allowed us to opt out for a period of seven years?
In conclusion, we on these Benches pay great tribute to the men, women and families of our Armed Forces. They have been over-committed and yet they have performed their tasks highly successfully with great skill and bravery. But a word of warning: those skills are beginning to fade and troops and families are beginning to become tired. Retention rates are poor and consequently experience is drifting away which is the start of inefficient Armed Forces. It is Her Majesty's Government's responsibility to ensure that the Armed Forces of the Crown are funded correctly. If under-funding persists, manning levels will fall, equipments will be cancelled or delayed, commitments will have to be cut and our fighting efficiency will deteriorate.
My Lords, I thank all noble Lords who have taken part in this discussion of the order and the amendment to the order. The passion and thought with which all distinguished noble Lords have spoken has certainly been effective.
I hope that noble Lords will not think it offensive if I tell the House straightaway that I do not intend tonight to go into the merits or otherwise of the Chinook affair. There will be a debate following the publication of the Government's response. But I tell the noble and learned Lord, Lord Mayhew, that it may not be possible to have that debate before the Recess because it may not be possible to publish the response until very close to the Recess itself.
When the response is published it is intended that there will be a Statement made in this House so that there will be a short discussion—I know how long Statements take in this House—at the time. I do not see that, nor will noble Lords, as a substitute for a full debate. That debate will take place, but I cannot give a guarantee that it will happen before the Recess.
I shall briefly deal, first, with the timetable and, secondly, the attacks which have been made on the executive and the Ministry of Defence. I shall not be long about either. As regards the timetable, at the risk of repeating what I said some time ago when I moved the order, I say this. The Select Committee's report was published on 5th February, not 3lst January, of this year. The Government have consistently said, and I say it again tonight, that they will respond to the report before the six months allowed for responses—I repeat, allowed for responses—under the rules which we have to follow have elapsed. That remains our intention and we fully expect to publish our response before the House rises.
The committee's report is a detailed assessment of a set of complex, technical, legal and, we believe, airmanship issues. Surely it must be right that it has to be fully and carefully assessed. That is what we will be doing and we will not be deflected by name-calling from doing that.
I turn briefly to the comments made about the Ministry of Defence and the executive. The comments sadden me and I believe them to be unfair and unfortunate. I hope that some elements of the House may agree with me. It is not fair to say that the Ministry of Defence has dragged its feet, or that its back is against the wall.
Two important matters need to be resolved by the Ministry of Defence before it can put forward its decision and its view, which will be decided by Ministers and nobody else, on this very important matter. It is extremely important as well as being an extremely tragic case. The first matter relates to further advice from counsel on the application of evidence concerning the standard of proof criterion. We have heard some very distinguished views on that today. We are obtaining further advice from counsel. I share that with the House. That is what we are doing and I believe that we would be rightly criticised if we did not do that.
Secondly, as regards Boeing, the House will recall that the very distinguished committee which looked into these matters criticised the original Boeing simulation and the standard of proof. As part of the detailed assessment of the report that is currently being undertaken, surely it is right to seek Boeing's input. Indeed, I would have expected the House to criticise us if we had not bothered to do that. We want the best possible advice. We have asked for Boeing's comments and that they review their original analysis with the inclusion of a full FADEC simulation. The modelling tool available at the time did not include FADEC parameters although the engineers who conducted the original simulation factored in known FADEC performance criteria. Boeing has also been asked to re-examine to what extent the minimum speed at the way-point can be established. Boeing is doing that and is assisting. We are grateful to it and to the other companies involved in this work—in other words, the sub-component manufacturers—for their co-operation.
Boeing is the only manufacturer and design authority of the Chinook. Only Boeing possesses the necessary detail about the design and material of the aircraft and its capabilities. We intend to make the evidence produced through Boeing's work, in the light of the re-modelling process, available although there may be some matters of commercial sensitivity which preclude publication of some elements.
I want to emphasise to noble Lords that we have been consistently open. Nothing is being hidden; there is nothing to hide. Anyone who has experience of the defence industry and, one might say, of industry generally, will know that it sometimes takes quite a long period of time for these reports and examinations to be done and sent back to Britain. It is unfair to suggest that the Ministry of Defence is dragging its feet because those reports have not yet reached us. We are hoping that they will shortly and they will be considered properly and carefully. I cannot believe that the House would expect us to do anything else.
The suggestion that a decision has somehow been made by the Ministry of Defence as to what conclusion we are going to reach on the Chinook matter is absolutely wrong. No decision has been made. We will look carefully at the whole issue when we have received the new information and then make the decision, we hope, coolly, calmly and properly. We will report within the six months that we are allowed. I repeat, the decision will be made by Ministers.
I end this part of what I have to say by making this point. Given the level of interest that there is in this matter—we have seen it tonight in a very articulate form—how could the Government consider that any delay on their part would be helpful, as some noble Lords have suggested? We want to clear this matter up just as much as those who have spoken with such passion tonight.
I turn to what the original Motion speaks about and particularly with reference to the speech which the noble Lord, Lord Vivian, made a few minutes ago. I would like to thank both him, the noble Lord, Lord Redesdale, and other noble Lords for their support for the order itself. The noble Lord, Lord Vivian, acknowledged many of the issues which we are taking into account in our work on the tri-service Act, including striking the right balance between harmonisation and single-service requirements. He recognised the need to get the new legislation right. That is what is most important to us. The services are naturally concerned that we should proceed with caution and care in enveloping the new framework that is needed. In consideration of our timetable it is right that we should proceed at a pace with which the services themselves are comfortable.
Consultation with the House was mentioned and that is understood. One means of consultation is these annual debates and it may be that in years to come we shall be able to concentrate more on the order itself. However, this time next year the policy development stage that I spoke about should be complete. I am happy to consider whether it would be possible to publish information about our proposals. If we were to do so I am sure that there would be no reticence on your Lordships' part in giving the Government the benefit of your views. I invite the noble Lord to leave that matter with me for the time being.
The noble Lord, Lord Vivian, commented on the changes that are to be made to service discipline because of the European Convention on Human Rights. I agree with his comments about the critical importance of the commanding officer in upholding discipline and maintaining morale, and the key role that those factors play in preserving operational effectiveness. Where I part company gently from him is in his analysis that the changes to be made in some way undermine the position of the commanding officer or are damaging to discipline and morale.
The changes have increased the fairness of the system of discipline and, I would argue, have helped to bolster the respect in which the subsystem is held by those who are subject to it. If so, we do not believe it necessary to consider leaving the ECHR even on a temporary basis. We take a positive view. Those who bear the heavy responsibility of defending our rights—the rights of the population at large—should enjoy those appropriate rights themselves.
I shall briefly mention the International Criminal Court. The noble Lord asked why the UK did not opt to take advantage of the seven year transitional period in Article 124 of the statute whereby a state can declare that provisions on war crimes do not apply to crimes committed by its nationals or on its territory. In the negotiations for the ICC statute we made it clear that it would have been better not to include such a transitional arrangement if agreement had been possible without it. It is a perverse position for states to join the court but not to accept the bulk of its jurisdiction for seven years. We believe that making use of that provision would have called into question our commitment to the International Criminal Court.
The complementary provisions of the statute whereby we have primacy of jurisdiction in cases where our nationals are accused provide the protection that our service personnel require. In other words, if the UK decides that there is no case to answer, then the ICC would not have jurisdiction unless it could claim that the UK was deliberately shielding war criminals or that the justice system had broken down. We do not believe that either of those situations is likely to occur.
The noble Lord, Lord Vivian, ended by referring to the commitments of our Armed Forces and the implications for personnel and their families. It remains our policy to achieve a balance of commitments. We aim to commit personnel to operations for no longer than is necessary to achieve their military purpose. That was evident in the case of the deployment to Macedonia last year. I am grateful for the kind remarks that he and the noble Lord, Lord Redesdale, and others have made about our Armed Forces. They are well deserved. I commend the order to the House.
My Lords, I shall be brief. I said that this amendment was not intended to disrupt or undermine the Royal Air Force or any other part of the Armed Forces. Indeed, I have been somewhat resentful of some of the suggestions made that this amendment has in some way prevented us from paying tribute to the Armed Forces as though it were a formality that we had to go through.
I served for 25 years in the Armed Forces and I yield to no one in my regard and admiration for them. I am willing to repeat that admiration at any time—not just as a formality during a debate. The reason why I tabled the amendment was to point out that Parliament is not a talking shop—although it may have sounded like it tonight—to be ignored by the Air Staff or by the Government. Sometimes people should be reminded that Parliament has teeth and may sometimes bite. It is not going to bite on this occasion, but there may be occasions in the future when it might.
I shall not take up any of the arguments that have been made tonight for obvious reasons of time, except to make two points. I want to make a small point about the date of the report. There is not much argument about it because it is printed on the report—ordered to be printed on 31st January. As far as I am concerned that is when the report was issued. However, we will not argue about five days when we have already waited this length of time for the Ministry of Defence response.
My only other point was made also by my noble and gallant friend Lord Craig of Radley. He mentioned the number of Ministers who supported the view of the air marshals. I can tell him that a number of Ministers from the Ministry of Defence over recent years have personally told me that they have some doubt about it. Perhaps I can remind your Lordships' House that the Secretary of State at the time has said publicly that if he had known then what he knows now, he would never have allowed the verdict to stand.
The debate has done to some extent what I intended it to do. I found no other way of achieving that end. As the noble and learned Lord, Lord Mayhew, said, it was a device, whether or not ingenious I do not know, but the only one I could think of which would point to the fact that we have now been waiting since either 1st January or 5th February for a response from the Government. We have not had one.
In passing perhaps I may say that if it is only now that they are seeking the advice of counsel on the matter of whether there is any doubt and what the legal implications of that are, I wish that the air marshals had taken counsel's advice before coming to their decision.
However, this is an issue which your Lordships will undoubtedly wish to visit when eventually there has been a chance to consider the Government's response to the Select Committee's report. I regret that we shall not have an opportunity for debate before the Summer Recess. But we shall at least have an opportunity to consider a Statement, which is moving us some way towards what I hope will be a happy conclusion. In the mean time, I beg leave to withdraw the amendment.