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How close were you to your dead child?

That's what the Charity Commission wanted to ask the parents of 109 dead children before releasing compensation. Iain McLean outlines the aftermath of the Aberfan disaster and a charity law in dire need of reform

I you are over 40, you remember what you were doing on two days in the 1960s. One is Friday, November 22 1963. The other, also a Friday, is October 21 1966, the day that 109 children were killed in their classrooms at Pantglas Junior School, Aberfan, near Merthyr Tydfil in South Wales, when a waste tip from Merthyr Vale Colliery slid down the mountain and engulfed their school. The death toll was 144. Aberfan horrified the nation as no other British disaster since 1945, except Dunblane, has done.

I was on a day off in the Wye valley with some friends. We were only 30 miles from Aberfan, but not till I got home that night did I find out what was up. Like the rest of the nation I stood transfixed in front of the television to hear Cliff Michelmore, in tears, saying: "Never in my life have I seen anything like this. I hope I shall never ever see anything like it again. For years, of course, the miners have been used toI disaster. Today for the first time in history the roll call was called in the street. It was the miners' children." The tip fell on the school at 9.15am, when the children had just returned to class after assembly. Nobody was found alive after 11am that day, but it took nearly a week to recover all the bodies.

The chairman of the National Coal Board, Lord Robens of Woldingham PC, was being installed as chancellor of the University of Surrey on the day of the disaster. The following evening, he went to Aberfan, where he announced that it was impossible to have known that there was a spring in the heart of this tip that was turning the centre of the mountain into sludge.

This remained the official view of the NCB throughout the 76-day inquiry, though local villagers had immediately said that Robens was wrong, and that everybody in the neighbourhood knew that the NCB had been tipping over two springs - a fact confirmed on the Ordnance Survey map.

Like everybody else, I wanted to do something, so I started to raise money. The funds I raised went with thousands of others to the disaster fund announced by the mayor of Merthyr on the evening of the catastrophe. It raised Pounds 1.75 million, worth about ten times that in present-day prices.

In 1968 the Labour government of Harold Wilson announced that it needed a contribution from this disaster fund to pay for the removal of the other tips that still hovered above Aberfan. As slurry from them had come down into the village in a storm that summer, it was a highly emotive issue. Nevertheless, the fund was forced to pay Pounds 150,000 to the NCB as a contribution to the cost of removing the tips. In July 1997 Ron Davies, then Welsh secretary, returned this Pounds 150,000 to the fund.

The report of the tribunal of inquiry into the disaster was published in August 1967. It was extremely critical both of the Coal Board and of its chairman, Lord Robens. Many politicians expected that he would resign or be dismissed, but he stayed on. At the end of his term, Barbara Castle made him chairman of the committee that produced the Health and Safety at Work Act 1974. Nobody was prosecuted, dismissed or demoted as a consequence of Aberfan.

The basic story of what happened has been known since 1967. Over the years, survivors' stories added a few more telling details. But 1996 brought the prospect of the first releases of government documents under the 30-year rule. In fact several Aberfan document classes were released early. They show that Lord Robens led a doughty fight to keep his job and to get others to pay for removing the Aberfan tips. Ministers in the Wilson government were no match for him. The Ministry of Power protected the Coal Board, not the public.

But the documents revealed more than this. They showed a consistent pattern of regulatory failure. Neither the Mines and Quarries Inspectorate nor the Charity Commission managed to protect the public, including the public in Aberfan. The mines inspectors had not noticed that the tips were in a dangerous state; the disaster was not even a reportable accident under the relevant act, because no miners were injured. (The tipping gang went for a cup of tea when they saw the tip start to behave oddly - this saved their lives). The current phase of our research examines these regulatory failures with the help of the latest releases of the Charity Commission's papers.

Aberfan put charity law under great strain. Dating back to 1601 and never codified, the law recognised as charitable some objects, such as the relief of poverty, and the advancement of education and of religion. What the law recognised as charitable did not necessarily match what you or I think of as charitable. It still does not. At Aberfan as at other disasters, the money given was far more than the victims needed materially (in any case, the Coal Board had a strict liability to compensate them for their material losses). No money could compensate parents for losing their children. Some people said that it was irrational for the public, 90,000 people, to give money. But there is no arguing with the impulse to give. One letter accompanying a donation reads:

"Please use this small amount in any way you wish. I was saving it for a new coat. O God I wish I had save (sic) more. Yours sincerely, A Mother."

The disaster fund's first brush with the Charity Commission was in July 1967. Alarmed that "the proposal to erect a monument (at Aberfan cemetery) might be a target for criticism" and not a charitable purpose, the commission tortuously reasoned that as the memorial to the victims improved the cemetery it could be regarded as charitable after all. Grants to bereaved parents were more problematic. At one point the commission wanted to insist that before any payment was made each case should be reviewed to ascertain if the parents had been close to their children and were thus likely to be suffering mentally. Parents who were found not to have been close to their children would not be compensated. Perhaps fortunately, this advice was not taken, and the disaster fund paid all bereaved parents the same sum: Pounds 5,000. It is difficult to imagine bereaved parents being asked "How close were you to your dead child?" At another meeting, the commission prepared to remove the disaster fund's trustees or make a financial order against them if they persisted in trying to make grants to parents of children who had not been physically injured that day. The trustees backed down. Many of those children, now in their forties, may still be suffering from the effects of the disaster.

In stark contrast, the commission did nothing to protect the trustees from the highly dubious abstraction of Pounds 150,000 to pay for tip removal. A note in the Welsh Office papers suggests that the government may have cleared the move with the commission. The trustees, on the other hand, had had so much trouble with the commission that none of the surviving trustees we have interviewed ever considered seeking the commission's protection. In Aberfan, the commission seemed like an inquisitor, not a friend.

The Charity Commission had a very introverted conception of the public interest. It had a duty to protect the public from misbehaving charities. But nobody outside the commission objected to the disaster fund spending money on the cemetery or on flat-rate grants. And it quite failed to protect the public (beneficiaries and donors) from a government raid on the disaster fund.

Only half of those who wrote in said that they approved of the fund's money going on tip removal. The tips that the fund partly paid to remove were in a dangerous place and in poor condition; according to the Coal Board's technical literature they should never have been put where they were; and the Coal Board was strictly liable to compensate anyone who suffered damage from them.

In the end, the Coal Board paid out about Pounds 160,000 to offset the money the disaster fund had paid to the bereaved. It got back Pounds 150,000 towards removing its tips. However, British Coal and its successors have continued to send a wreath to the memorial service in Aberfan cemetery each October 21.

The Aberfan experience led organisers of some more recent disaster funds to forgo charitable status. The Bradford stadium fire fund (1985) was set up as a non-charitable trust. It is anomalous that something the public sees as quintessentially charitable has to avoid charity law and forgo the inherent tax advantages. When things reach this pass, it is time to ask if the law is servant or master.

After 32 years, Aberfan still often feels like a traumatised community. The government's return of the Pounds 150,000 in 1997 was welcomed in South Wales. But perhaps government still has some apologising, and some explaining, to do.

Iain McLean is a professor of politics, Oxford University. In 1966, as an undergraduate, he chaired the Oxford University Aberfan Disaster Fund.

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