UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1647-ii

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

HOME AFFAIRS COMMITTEE

BORDER CHECKS DURING SUMMER 2011

TUESDAY 22 NOVEMBER 2011

DAME HELEN GHOSH DCB and DAMIAN GREEN MP

Evidence heard in Public

Questions 289 - 430

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
3.	Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
4.	Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 22 November 2011

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Michael Ellis

Lorraine Fullbrook

Dr Julian Huppert

Steve McCabe

Alun Michael

Mark Reckless

Mr David Winnick

Examination of Witness

Witness: Dame Helen Ghosh DCB, Permanent Secretary, Home Office, gave evidence.

Q289 Chair: We now change the subject of the Committee’s deliberations to UKBA. Can we call the permanent secretary at the Home Office? Good afternoon, Dame Helen. My apologies for keeping you waiting. We are in the middle of two other inquiries that have been going on. Thank you for giving evidence. On behalf of the Committee, may I thank you personally? Whenever we have written to you, you have been very co-operative with the Committee in providing us with information, and I am most grateful to you for coming here to give evidence on the latest issues that are challenging the Border Agency. We will see you again before the end of the year about your normal work-not that this is not part of your normal work.

We want to concentrate today on what has happened with regards to the pilot that the Home Secretary instituted, the unauthorised extension-according to the Home Secretary, but not Mr Clark-and, finally, the suspension of Mr Clark. I suggest that this has been something of a public relations disaster for the Home Office in the past two weeks. The head of border force security has resigned, the Home Secretary has been to the House on a number of occasions and there was obviously confusion as to whether the fingerprinting was going on at Heathrow. Had it not been for Mr Vine visiting on a particular day, we would still be in a position where some of these extensions to the original pilot would be taking place. Are you embarrassed, surprised, disappointed? What is your reaction to what has been happening over the last two weeks? You are permanent secretary at the Home Office.

Dame Helen Ghosh: Thank you, Chairman. As I have said on a number of previous occasions, I think that the Home Office is a complex delivery and operational Department and we need to ensure that we have the right systems and processes in place for understanding the risks that the Department carries. As I set out in my letter to you of 14 November, we have a number of high-level governance arrangements, both in the Border Agency and in the Department as a whole, particularly in the form of the executive management board, which I chair, and the supervisory board. Those two boards look at a range of high-level indicators around UKBA performance, for example, on the border force side, around the number of clandestine illegal immigrants, the kind of goods we seize and so on.

Q290 Chair: You can take it that we have all read your letter.

Dame Helen Ghosh: Splendid, but, of course, recent events give us pause in terms of how in any very complex organisation, such as this, you understand what is happening at the front line. My colleagues and I make a number of visits to the front line. I was at Gatwick over the summer talking to staff about the circumstances in which level 2 checks were instituted. This is an issue that Rob Whiteman is now looking at in terms of the kinds of management information he requires and the kinds of checks we make, but ultimately I think in this instance, despite the fact that Ministers had requested weekly reports-

Chair: We will come on to that.

Dame Helen Ghosh: -none of them mentioned secure ID for non-EEA visa nationals. Unless that kind of data come up from staff, you rely on the very good inspector, John Vine, who we have looking at processes.

Q291 Chair: Right. We will come on to all that. Thank you for that very helpful introduction. Let us go to your knowledge on these matters. You became Permanent Secretary this year. Presumably, you had a briefing on the arrangements at the border.

Dame Helen Ghosh: I had a high-level briefing, as would Ministers-I know that is also an issue in which you are interested, Chairman-across the range of issues that the Home Office deals with. Inevitably, initial briefings are at a high level, and they would almost certainly focus on issues of immediate interest, whether of political or operational nature. For example, an issue around what arrangements were made on health and safety grounds at the border would not feature in that kind of initial high-level briefing; it would be the kind of issue that would emerge as one made visits, as one received submissions from relevant officials. That would be how I would have expected to hear about that particular issue.

Q292 Chair: So your answer to my question, very simply, is that you did not have a briefing on what Brodie Clark told us last week was the relaxation that had apparently gone on since 2007.

Dame Helen Ghosh: Absolutely not.

Q293 Chair: That is very clear. You did have a briefing, though, at some stage, and you were aware of the existence of-I think we should call it the Home Secretary’s pilot. Everyone agrees that this pilot was very successful-the Prime Minister, Mr Clark and, indeed, the Home Secretary. You knew about the pilot.

Dame Helen Ghosh: Indeed I did. Again, I shall give the Committee some understanding of how I operate in my role. I see-they pass through my in-box, they are put in to me to read-all key submissions that go to Ministers in which the Department believes I would be interested, so issues like the early and later submissions from the border force on the summer pilot were ones that I would have seen and read. I was aware of the whole sequence of advice, responses from Ministers and the ultimate conclusion.

Q294 Chair: Excellent. And you would have known then that the Immigration Minister and the Minister for Security had signed off the original pilot that Mr Clark had put to Ministers. You were aware that they had given permission for it to start.

Dame Helen Ghosh: No. They had not given permission for it to start. At the beginning of the year, in January, the border force, led by Brodie, started to put together a range of options-

Chair: I think we should call him Mr Clark.

Dame Helen Ghosh: Mr Clark had put together a range of options for Ministers for dealing with both risk-based approaches to the border and, in particular, summer pressures. The early submissions that Mr Clark put to Damian Green and Pauline Neville-Jones were clearly the beginning of a process. They were not-and I don’t believe Mr Clark thought so, either-the conclusion of the process, because they were seeking early steers. Again, as a former Minister, you will be familiar with that process.

It was clear from Mr Clark’s responses to the comments that both Damian and Pauline made to the submissions, that he was anticipating that further advice would come forward. Clearly, given the importance of this issue in terms of risk-based approaches, it was inconceivable that they would act on a basis other than approval by the Home Secretary. That is completely clear from the sequence of events.

Q295 Chair: Fine. But there would be submissions anyway. I remember, as a former Minister, that if I got a submission, I had to initial whether I accepted it, or I had to say, "No, I want further work." So there was then further work.

Dame Helen Ghosh: There was then further work-

Q296 Chair: And there was then agreement by all concerned that the Home Secretary’s pilot, supported by Mr Clark, should be commenced.

Dame Helen Ghosh: There was then agreement. Again, there were discussions in April and, finally, in July, before the pilot was due to start, which absolutely tied down what its content should be. As the Committee has discussed, both with Rob Whiteman and Brodie Clark, it was very clear what the terms of the pilot were, in terms of under limited circumstances for short periods and not routinely opening the chip on adult EEA customers and so on. It was completely clear, by the time the Home Secretary gave her final approval, what was in the pilot and what was not in the pilot, and I think that Mr McCabe’s question to Brodie at the hearing last week brought that out very clearly.

Q297 Chair: You are also very clear that there was an explicit instruction, which the Home Secretary told the House and, indeed, mentioned to this Committee. I am sure that you have seen the correspondence between myself and the Home Secretary.

Dame Helen Ghosh: I have.

Q298 Chair: There was an explicit instruction to Mr Clark that he should not exceed the authority of the pilot.

Dame Helen Ghosh: Yes, there is an explicit e-mail instruction from the Home Secretary’s office to Mr Clark to that effect.

Q299 Chair: Finally, before I ask colleagues to come in on the pilot, isn’t it strange that, despite the fact that we have all these people working for UKBA and that you as permanent secretary have given us a list in your letters of all the boards and supervisory boards that exist, it took a chance visit from Mr Vine-presumably he has been visiting since he became the independent chief inspector-to discover this most extraordinary circumstance whereby thousands of people were allowed into the country without having their fingerprints checked? With all these people employed by UKBA and all these people sitting on boards, it was just a chance visit.

Dame Helen Ghosh: As I said in my opening remarks, I think it gives us cause to consider the chain of management information and our process for checking it. I think it also raises cultural issues around the leadership of border force. Ultimately, Ministers were relying on very detailed weekly reports from Brodie Clark that never mentioned the issue. I think that is the issue we have to deal with.

Q300 Chair: These submissions are going to be available in the end to various inquiries. You talked about a cultural problem at the head of the UK border force. Is that now solved?

Dame Helen Ghosh: As you know, we have put in place an acting head, Matthew Coats, who is an experienced UKBA and civil service leader, and Rob Whiteman has instituted a much more rigorous-I believe six-hourly-suite of management reports on what is happening.

Q301 Chair: And you get a copy of that every six hours, do you?

Dame Helen Ghosh: I don’t get one; Rob Whiteman gets one.

Q302 Michael Ellis: The original pilot appears to have been rather effective, according to reports that we have heard, presumably in that it allowed officers to focus on real perceived risks. We have had figures that show that there is a 10% increase in the detection of illegal immigrants and a 48% increase in the detection of forged documents, so are we on the right ground to say that, actually, the original pilot was pretty sound?

Dame Helen Ghosh: We are operating on the basis that the original basis was indeed sound, as you would expect from a pilot that focused on high-risk issues rather than the low-risk EEA passengers. Before we can finally identify the outcome of the pilot, we have, of course, to look and see what our baseline was. Given the fact that it was not, as we had thought, being operated with the rigour that the Home Secretary and Ministers were led to believe it was, you have to question what the baseline is. So final evaluation of the pilot will take perhaps a couple of months further, to make sure we really are comparing like with like.

Q303 Michael Ellis: There has clearly been a divergence between Mr Whiteman, in whom I presume you have every confidence, and Mr Clark in connection with the evidence that they gave to this Committee last week. We have heard that there were two junior officials present in that meeting. In circumstances where there is such a divergence, have you spoken to either of those officials, or have you seen for yourself the minutes that were generated by that meeting? Do you have any observations to make about the divergence in opinion?

Dame Helen Ghosh: First, I certainly have faith in Mr Whiteman. I appointed him myself in the course of the summer and he has a long and distinguished record. I have seen the disciplinary notes, which are part of the disciplinary process that is now obviously suspended, in relation to Brodie Clark himself.

Chair: Yes, we will come on to the details.

Dame Helen Ghosh: I have read those accounts. I have also read, of course, Mr Clark’s own testimony before this Committee and some of the media appearances that he has made. In terms of the facts of the case that were covered by Mr Whiteman both on the Wednesday evening in his interview with Brodie Clark and the Thursday morning when he had the formal interview, I don’t think that in substance-Mr Clark raised the point that he believed that he was covered because, although he had suspended the biometric checks on non-EEA nationals, he believed that he was acting under the earlier HOWI guidance-there is actually any difference in outcome.

Q304 Chair: Perhaps you would explain what the HOWI guidance is for the benefit of those who do not know.

Dame Helen Ghosh: Certainly. Mr Clark’s essential argument to explain the significant divergence from the clear instruction given by the Home Secretary is that, although this was never mentioned at any stage in the policy-making process, he was in fact operating under guidance on the suspension of the warnings index which was formulated in 2007. That provides-this is a very important point-that in relation only to EEA nationals who are travelling on services of low or very low risk, UKBA staff can suspend warnings index checks if there are significant health and safety issues. For example, if cars are backing up on to the motorway at Calais, or there is crowding at airports.

In the exchanges with Rob Whiteman over that important evening and morning, Mr Clark said that he accepted that he had relaxed the biometric checks, but that he believed that he had been covered by the earlier advice. Given all the evidence that both Mr Clark and Rob Whiteman had given, I think there is no difference of opinion about that point, as covered in the notes.

Q305 Michael Ellis: Can I add one more point? This is important. Mr Whiteman said to this Committee that the possibility of Mr Clark retiring was raised-

Q306 Chair: Mr Ellis, you can raise that later. We are concentrating on the pilot. Do you have a question on the pilot? We will raise the suspension later.

Q307 Michael Ellis: It is sort of connected, but I’m happy to come back to it.

Q308 Alun Michael: On this business of responsibility, you refer in your letter to the UK Border Agency as being part of the Home Office, and later you refer to Home Office HQ and the UK Border Agency as if they are something different and outside. If they are part of the Home Office, surely you can’t talk about the Border Agency and the border force as if they are not your responsibility.

Dame Helen Ghosh: No, and we tried to think of a better way of drafting that. We redrafted it several times.

Q309 Chair: Redrafted the letter?

Dame Helen Ghosh: To explain that point, because the terminology that is used, including by the Committee, is to say that there is the Home Office on one hand, and UKBA on the other. UKBA is part of the Home Office. I lead 30,000 people-

Q310 Alun Michael: Yes, that is my point.

Dame Helen Ghosh: It is absolutely part of the Home Office.

Q311 Alun Michael: So why in the letter do you draw the distinction as if it is nothing to with the main Home Office HQ?

Dame Helen Ghosh: I was just trying to answer the question in the terms in which the Committee had put it to me.

Q312 Alun Michael: So you accept that you are entirely responsible for the Border Agency and the border force.

Dame Helen Ghosh: I accept that as accounting officer and leader of the Home Office I am responsible for leadership of the Border Agency and the border force.

Q313 Alun Michael: Could you help me with one other thing? There seems to be a reference to all sorts of boards: the main Home Office board, the executive board, the supervisory board, the Home Office advisory board and the agency board. Is it clear to everyone who is responsible for what, and are they all fit for purpose?

Dame Helen Ghosh: I believe it’s clear to everyone who is responsible for what.

Q314 Alun Michael: It’s not clear to us.

Dame Helen Ghosh: If I may help the Committee, essentially in terms of the overall high-level governance there are three boards in which you would want to take an interest. There is the supervisory board, an innovation of this Government-

Q315 Chair: Well, we want to take an interest in everything, not just the three at the top.

Dame Helen Ghosh: Indeed you do, but I was trying to assist Mr Michael. The supervisory board, introduced by this Government, is chaired by the Home Secretary, is supported by non-executives, and takes a high-level, non-executive role. It doesn’t take decisions about management of the organisation, but it monitors our performance, particularly against our business plan, and risks.

Q316 Alun Michael: Dame Helen, with respect, I suspect that we’ll get bogged down in this.

317 Chair: Too many boards.

Q318 Alun Michael: Could we have a list of the boards, whether you think we might be interested or not, and could you express with clarity who is responsible to whom, and exactly for what?

Dame Helen Ghosh: I would be delighted to do that.

Q319 Chair: Perhaps we could know who is on all the boards. I think Mr Michael mentioned four, but there is also the group investment board, the capital and portfolio board and the audit risk board. If we could have a list of all those boards, how often they meet, and the membership, that would be very helpful indeed.

Dame Helen Ghosh: I would be delighted.

Q320 Mr Winnick: In the saga that is continuing with a number of inquiries, including our own, isn’t the crux of the matter to some extent whether Mr Clark believed that what he was doing, which led to his suspension, arose from what was agreed to in 2007?

Dame Helen Ghosh: That is indeed, as I was saying to Mr Ellis, effectively the crux of the argument he has put.

Q321 Mr Winnick: He continued, as you know, in evidence before us last week to emphasise that. Mr Clark I think gave 38 years’ service-longer than yours, because of his age-15 of which were held in very senior positions. Would you not find it strange that he should, on his own initiative, go against the policy that had been agreed to? Would there be any incentive or any reason for him to do so?

Dame Helen Ghosh: Obviously, the reasons why he did so are the subject of the inquiries to which the Chairman referred. I would come back to the point that I made to Mr Ellis, which is that if Mr Clark were relying on this earlier policy instruction, it was disingenuous to do so because it was absolutely clear that that did not apply to non-too many negatives-non-EEA passengers, and, therefore, to suspend the use of biometric checks on non-EEA passengers as an unauthorised extension to the level 2 pilot was not covered explicitly by the 2007 guidance.

Q322 Mr Winnick: Well, clearly Mr Clark thinks otherwise. When she agreed to the pilot that we are discussing, was the Home Secretary fully aware of the 2007 position?

Dame Helen Ghosh: Absolutely not, because that guidance was never, ever mentioned to her.

Q323 Mr Winnick: Why not? Unlike the rest of my colleagues, I confess to being a total layman in these matters. If the Home Secretary decides to take such an active interest in day-to-day operations at the airport-I am not criticising that; if the Home Secretary of the day wishes to do so, so be it-why was she not informed of the previous policy relating to 2007? Shouldn’t she have been properly briefed?

Dame Helen Ghosh: I cannot answer that in relation to what was in the mind in particular of Mr Clark, but certainly the lesson that I learn as head of the civil service for the Home Office is to make sure that we put all relevant facts in front of Ministers when we are giving them advice.

Q324 Mr Winnick: But she was not, therefore, aware of the 2007 advice?

Dame Helen Ghosh: She was not aware of the 2007 advice, nor at any stage in the operation of the pilot was the fact that these suspensions were happening drawn to her-or indeed to Mr Green’s-attention.

Q325 Mr Winnick: Is it possible that had she known, she might have taken a different decision over the pilot? Is that a possibility?

Dame Helen Ghosh: I am never a believer in speculating on a counter-factual. She was certainly very clear what she wanted in the pilot, and she was very clear what she did not want in the pilot. Had she known that this earlier advice might erroneously be interpreted in the way it was interpreted, I guess she would have been even clearer in her statement about what should happen and what should not.

Q326 Mr Winnick: Dame Helen, that is very much a politician’s answer; whether that will be taken as a compliment or not, I do not know. Just one more question: the Chair has emphasised that had it not been for the intervention of Mr Vine, nothing would have occurred. Again, I am a bit puzzled, even if I cannot bring my colleagues in and say that they should be equally puzzled. If the Home Office, led by the Home Secretary, takes such an active interest in the pilot and the rest of it, why was it not monitored accordingly? Why should it simply be left to Mr Vine to discover that, lo and behold, what was being done was not in accordance with the pilot?

Dame Helen Ghosh: My prime answer to that question is that it was being monitored, and it was being monitored through the weekly reports that were coming from Mr Clark to Ministers, none of which mentioned this issue. That is the essential point to make in response to your question. What it does raise, and this is something that Rob Whiteman is looking at very carefully in terms of lessons learned, is that we need to have a culture of very clear logging of activity-another point on which I know John Vine will be very focused-or an absolutely systematic logging of activity so that we can go back through the record and ask precisely that question.

Q327 Lorraine Fullbrook: Dame Helen, Mr Clark last week admitted to me that he had suspended fingerprint checks without ministerial approval and that he subsequently made a request, which was then rejected. It was my contention to Mr Whiteman last week that Mr Clark had stretched the 2007 guidelines-I understand that they are designed for emergency situations-and he had stretched them to the extent that they had, in effect, become routine guidance. Would you agree with that?

Dame Helen Ghosh: There are two issues here. The area in which he had stretched the pilot was, of course, in particular in relation to secure ID. What we are now looking at and analysing is the extent to which it went beyond the strict terms of the pilot-in other words, that it should operate only for short periods of time and that only in those short periods of time should staff not routinely open the chip or not routinely check children. We need to establish the facts, as I am sure John Vine will be doing, about what periods those checks-that level 2 freedom-were being used. I cannot say at the moment exactly what the periods of time were for which it was being stretched.

The key issue on which the initial suspension of Mr Clark happened was around the biometric checks.

Chair: Yes, we will come to that.

Q328 Lorraine Fullbrook: It is alleged that Mr Clark carried out biometric checks on EEA nationals and warnings index checks on EEA nationals, but those on children were not carried out on a regular basis, adults were not checked against the warnings index at Calais, the verification of fingerprint checks on non-EEA nationals from countries that require a visa was stopped on regular occasions and checks on second photographs in the biometric chip of passports of non-EEA nationals were regularly stopped. Were you aware of this?

Dame Helen Ghosh: No is the answer, for the reasons I have previously given to the Committee. Some of those things are allowed for, and I will just pick one example under the HOWI of 2007. For example, were the French police to say, "Look, cars are backing up on to the motorway," and we did not check EEA adults-or, indeed, children-against the warnings index, that would have been covered by the HOWI guidance.

What we need to be clear about, in the course of John Vine’s investigation, is to what extent there were genuine responses to health and safety issues, to which the HOWI could be applied in the case of EEA nationals, and to what extent there were not genuine health and safety instances. That is what we need to establish now, so I would not like to speculate on the extent or the timetable.

Q329 Chair: In your letter to us, you said you met Brodie Clark six times since July and you went down to the airports. You did not, by going down to the airports, discover anything amiss? It was just Mr Vine, with his great super-power, who discovered something was going wrong? Ministers visited and the Prime Minister went down to the border-nobody asked anybody what was going on?

Dame Helen Ghosh: Well, nobody said, including in the weekly reports, that-

Q330 Chair: Yes, I understand the weekly reports, but we have not seen the weekly reports; we are not being given the weekly reports. But in the visits made by you and presumably by your predecessor David Normington, who is now the first civil service commissioner, by all these civil servants over all these years since 2007-because we are talking about the 2007 guidance and Mr Clark said that it had been used since 2007-and by Ministers in the last Labour Government, who all popped down to the border, to the airports, did nobody ask the question, "What is going on?"

Dame Helen Ghosh: If I may just describe, I visited a number of our ports-Heathrow, Gatwick, Glasgow, Portsmouth. If I take the example of going to Gatwick, it was in August, so it was during the pilot, and I had a discussion with two or three staff on the principal control point. We talked about the timing and circumstances in which they were moving to level 2, and I saw them do it, so I saw passengers coming in. Did I ask the question, "Can you tell me whether or not you are going beyond the terms of the pilot?" No, I am afraid I did not, because-

Q331 Chair: No, because they would not have necessarily known about the pilot.

Dame Helen Ghosh: They would not have known about that.

Q332 Chair: But this is common sense. Ministers and senior civil servants have visited our airports over four years. This Committee has visited the airports in the last four years and had a look at immigration control. Nobody ever discovered that this was happening.

Dame Helen Ghosh: It depends-sorry, I am just coming back to the comment to Lorraine Fullbrook-what you mean by "it is". That is the issue.

Q333 Chair: The relaxation.

Dame Helen Ghosh: Sorry. We would all have accepted that there would be occasions when, for health and safety reasons, you would lift controls. If there was fire in the baggage hall-

Chair: Exactly.

Dame Helen Ghosh: -or, going back to the instance at Calais-

Chair: Or the planes not being able to land.

Dame Helen Ghosh: -that in that extreme situation, controls would be lifted. Volcanic ash, for example-when we suddenly had floods of passengers through, that was the kind of instance that was described.

Q334 Chair: So you would accept it.

Dame Helen Ghosh: But it was described, whenever it was described, as though it were an exceptional case, rather than a regular case.

Chair: Not routine.

Dame Helen Ghosh: And the fact that it then linked back to a piece of 2007 guidance was never raised. I would say that I and all Ministers and my predecessors would have had the consciousness that you needed a response in extreme health and safety cases, but the extent to which that set of rules was being used in relation to EEA nationals, and that it was also being used against the rules for non-EEA nationals, would not have been clear.

Chair: That is very helpful indeed.

Q335 Mark Reckless: So, Dame Helen, are you saying that Ministers and officials had no awareness that that 2007 guidance had been stretched?

Dame Helen Ghosh: I am saying that, as far as I am aware, there was no awareness. There was no awareness and no drawing attention to it during any of the debates this year about the level 2 pilot.

Q336 Mark Reckless: Okay. In your letter to us of 14 November, you said that "Home Office officials are engaged with Agency staff on policy development and implementation in key areas," and you then went on, "In this context they will be aware of a range of operational decisions by the Agency." Could that not have included the stretching of the 2007 guidance?

Dame Helen Ghosh: It could have done, had it been drawn to their attention.

Q337 Mark Reckless: There is an alternative way of seeing this. Earlier you referred to Rob Whiteman’s long and distinguished service, but you did not mention that that had been in local government. You said that you had appointed him yourself, but you did not mention that that meant that he had not the benefit of a confirmation hearing from this Committee. You also did not mention that he had only been in post for, I think, five or six weeks.

Dame Helen Ghosh: Indeed.

Mark Reckless: Is it not possible that, prior to Rob Whiteman coming in, there was a long-running practice of stretching this 2007 guidance, but then when he came in not being aware of that, this all came to a head and led to Brodie Clark’s suspension?

Dame Helen Ghosh: As Rob Whiteman himself said, he was not aware of the 2007 guidance, but the issue on which he suspended Mr Clark was not that the 2007 guidance had been stretched, although that subsequently came to light; it was that he was explicitly breaching the instruction given him by the Home Secretary on biometric testing. That was the ground for suspension.

Q338 Mark Reckless: But aren’t those just two ways of describing the same thing?

Dame Helen Ghosh: Absolutely not, because for the reasons that I have just given Mr Ellis, the HOWI 2007 guidance could not conceivably have covered the situation of not taking biometric tests, because essentially it applied to non-EEA visa nationals and the HOWI guidance explicitly said-although it predated biometric checks, as Lorraine Fullbrook elicited last week-non-EEA nationals need to continue to be subject to the full barrage of controls.

Q339 Mark Reckless: So, Dame Helen, you state, and I think the Home Secretary states, that there is this one piece of evidence that explicitly states that. We have not seen that. What we have seen is this 28 July operational note, which has a paragraph that says that if staff-presumably quite junior staff-want to go beyond the terms of the pilot and take other measures-

Dame Helen Ghosh: Take further measures.

Mark Reckless: -they need to get that signed off by the duty officer of the border force. Doesn’t that suggest a sort of stretching of the 2007 guidance?

Dame Helen Ghosh: As I think both the Home Secretary and I have said, and Rob Whiteman, the policy side of the Department was not consulted on that operational guidance. Had we been, that particular- The description of the summer pilot that had been authorised by the Home Secretary is completely accurate. Had a policy person read that reference to if you want to take further measures, then the question, "What do they mean by further measures?" might have elicited the issue around HOWI and what they thought the further measures might be, but it was not cleared or seen by Home Office policy people and therefore that question was never asked.

Q340 Mark Reckless: You say it has not been seen by Home Office policy people, but on the second page of your 14 November letter to us, the final paragraph explains that this policy aspect of the Border Agency was moved, apparently in August, from the Border Agency into the Home Office. Isn’t that a potential source of this confusion?

Dame Helen Ghosh: No, because the arrangements for drafting that interim operating instruction predated those arrangements. But it is one of the ways in which we can ensure, going forwards, that the operating instructions issued by UKBA are also quality-proofed and checked by the policy side of the Department. That, I think, creates a much better creative tension and challenge to the operating instructions and whether or not they are actually fulfilling what Ministers want them to achieve.

Q341 Mark Reckless: Finally, in her letter of the same date to us, the Home Secretary stated that up until June this year she had met Mr Clark on average at least monthly but after June met him only once. Isn’t it possible that that may also be a source of this confusion?

Dame Helen Ghosh: Absolutely not, because Mr Clark was putting in weekly reports on the progress of the pilot and this issue was not raised at any of those.

Q342 Alun Michael: Isn’t it arguable that the 2007 guidance was not stretched because the checks that should remain in place for non-EU travellers, according to that guidance, did not include the biometric checks because they had not been introduced at that stage?

Dame Helen Ghosh: What the 2007 HOWI guidance makes clear is that the suite of controls we have and checks we have-

Alun Michael: Which did not include the biometric checks?

Dame Helen Ghosh: -should not be relaxed, even under-

Alun Michael: Sorry, which did not include the biometric checks?

Dame Helen Ghosh: Which did not include the biometric checks, but it was completely clear that the policy was that non-EEA nationals should not have any relaxation of whatever the checks were; therefore I think it would be very-

Q343 Alun Michael: So this was guidance that actually included explicitly the retention of checks that did not exist at that point? That is a rather odd argument, is it not?

Dame Helen Ghosh: No, what I am saying is that the spirit- It was absolutely clear from the policy statement around that operating instruction that it was only to apply to EEA nationals on low or very low-risk services. Therefore, implicitly, it said that all checks, whatever they may be at the moment when they were being applied, that applied to non-EEA nationals should continue to be applied. In any event, the Home Secretary had in July this year explicitly said that she wanted those biometric checks to continue. I come back to the point that if anyone was interpreting the HOWI 2007 guidance to mean that they could raise the biometric checks, they should surely have said so to the Home Secretary at that point, and nobody did.

Q344 Alun Michael: You would agree, therefore, that it is sensible for us to be able to see those explicit instructions in order to see whether it is reasonable for the people who are being instructed to have interpreted what they were being told with a clarity that you imply is there?

Dame Helen Ghosh: As I have said, as the Home Secretary has said, all these documents will be available to Mr Vine, but I think to come back to the-

Q345 Alun Michael: But we are talking about this inquiry and the information that we need in order to be able to undertake our inquiry. That is surely the key document, isn’t it?

Dame Helen Ghosh: I wouldn’t agree with that. I come back to the evidence that Mr Clark himself gave to this Committee when asked, was there any ambiguity about the instruction that the Home Secretary had made, and he said no. So I don’t think there was any ambiguity.

Q346 Chair: Let me clarify. It is for this Committee to decide what is relevant. I have written to the Home Secretary on behalf of the Committee. She has replied. The Committee has met in private session. We are not satisfied with her response, which presumably was done on the advice of officials, including yourself. This is a Committee of the House and we are conducting our own inquiry. It is not the same thing to hand documents to Dave Wood, who is a member of the management board-

Dame Helen Ghosh: Sorry, to John Vine.

Chair: No, Dave Wood is one of the inquiries, the other is John Vine. After all, John Vine is also a witness. He was the person who discovered what the entire UK Border Agency and the Home Office and all the Ministers we have had in the last four years have failed to discover-the fact that there was a relaxation. So he is a witness, and this Committee may call him to give evidence. In fact I shall be writing to him. The fact is that we need to see these documents and I am writing again to the Home Secretary. We don’t want to have a fight on the Floor of the House over documents. These are documents that have been mentioned to the House. The Home Secretary said she gave an explicit instruction to Mr Clark. You have today told us for the first time that this was done by e-mail; we didn’t know that, and I don’t think it is sufficient to have this information coming out in these sessions. We are writing again to the Home Secretary about this, and if necessary we will take matters forward.

Dame Helen Ghosh: Thank you. I shall convey that to her.

Q347 Michael Ellis: The HOWI guidance that you have been referring to-Home Office warnings index 2007-is a restricted document, isn’t it? Presumably it is restricted because of the danger of terrorists and other subversives-

Dame Helen Ghosh: Taking advantage of it.

Michael Ellis: Taking advantage of it. So can I ask you this, to try to crystallise some of the questions you have been asked in the last half hour? Is it your position that it is not possible for any senior manager to stretch the 2007 guidelines when in fact those guidelines are silent on the subject of biometric fingerprint checks? It is the equivalent of saying, "You cannot use your interpretation of a 2007 guideline, which is silent on the point of fingerprints."

Chair: I am looking for a brief answer: a yes or a no.

Dame Helen Ghosh: That is my position.

Chair: Excellent.

Q348 Dr Huppert: Could I come back to the pilot? We have heard from you, from Ministers and everybody that the pilot was a success. That is very good. You may be aware that there has been some questioning, for example, by statistician Professor Sheila Bird, one of my constituents, of how that could be evaluated. How rigorously has it been assessed-that it was such a great success? You will know that the Home Office has recently been criticised by the UK Statistics Authority on another issue. How do we know it was a great success?

Dame Helen Ghosh: I come back to the points I made to Mr Ellis. There is some high-level management information that suggests it was a great success, for example, in terms of seizures and the number of illegal immigrant entrants detected. As I said to Mr Ellis, because of the issues that have now arisen about what was in fact happening around relaxation, and those Ms Fullbrook raised about the length of time that was happening, we want to check that we are comparing like with like. Having done the pilot, we have stopped the pilot to evaluate. We now need to do a proper evaluation in more detail, one that is more statistically respectable.

Q349 Dr Huppert: That is very good, and I hope you will also be able to respond to the questions that Professor Bird raises on straight statistics. I will send you a copy of that. If it does turn out that the pilot was as successful as originally suggested, does that mean that it will be continued?

Dame Helen Ghosh: I think what an evaluation of the pilot will suggest-if it is indeed positive-is that the approach of Ministers, both in the previous and this Administration, of risk-based approaches being a good thing, both in terms of securing the border more effectively and the experience of passengers, is one we should take forward. A number of people, including the Prime Minister and the Home Secretary, have said that risk-based approaches are the way forward.

Q350 Dr Huppert: So you are confident that we will not see a retreat from intelligence-led approaches, merely as a result of this particular issue.

Dame Helen Ghosh: Both the Prime Minister and the Home Secretary have expressed their faith in the principle of risk-based approaches.

Q351 Chair: On the question of the pilot, a figure was given in the House that there was an increase of 10%. What was the base figure?

Dame Helen Ghosh: That is what we need to check.

Q352 Chair: So we don’t have a base figure.

Dame Helen Ghosh: Given the evidence that we have about what was or was not happening, we need to establish that the base figure we are using is a comparable base figure.

Q353 Chair: But the Prime Minister and the Home Secretary said it has been increased by 10%. Do you know actual numbers?

Dame Helen Ghosh: I will let the Committee have the number.

Chair: We need to move on. The immigration Minister has been waiting very patiently to give evidence. We must not keep him waiting too long, colleagues. Nicola Blackwood.

Q354 Nicola Blackwood: Dame Helen, I wonder if I could take you back to the weekly reports. You mentioned that the reason why you and Ministers were unaware of the problems with border checks was that it was not included in Mr Clark’s weekly reports. When we heard evidence from Mr Whiteman, he stated that he did not think it was possible that Mr Clark was unaware of the suspensions of border checks. Do you think it was possible that Mr Clark was unaware of any of the suspensions of border checks?

Dame Helen Ghosh: Of course, now I am straying into the area that will be looked at by John Vine’s report and, indeed, into some of the context for the outstanding disciplinary inquiries, so I do not think I should speculate on that.

Q355 Nicola Blackwood: If he was aware, and we have Mr Whiteman’s testimony to that, do you think that it would have been something that should have been included in the weekly reports?

Dame Helen Ghosh: If he was aware, as indeed the early statements by Mr Clark suggest, then I absolutely believe it should have been included in the reports, given the very clear-if I can clarify, Mr Vaz, when I said it was in an e-mail, it was the report of a discussion with the Home Secretary reported out from the private office in an e-mail in the normal way. So, it was the result of a discussion with the Home Secretary, then reported in an e-mail-was the Home Secretary’s statement.

Q356 Nicola Blackwood: Is there standard information which is included in the weekly reports? Would you consider that an emergency situation at a port, which required the suspension of high-level border checks, would be worthy of note in a weekly report?

Dame Helen Ghosh: Yes.

Q357 Nicola Blackwood: Do you think that, if you are getting your information about such significant changes in border checks from one single source and there is a potential for that source to not be providing you information, it might be useful now to change the reporting mechanisms so that there are additional routes of information? So, where there is potentially a weak link, such as would appear to be the case in this instance, you could have other reporting arms.

Dame Helen Ghosh: Yes, and that comes back to the comments I made earlier about Mr Whiteman instituting, at the moment, much more regular six-hourly checks, but also looking at the whole issue around logs and how logs are kept on the ports, so that they are subject to, and capable of, being checked independently.

Chair: Excellent. Could we have a final question on the pilot, Mr McCabe? I want to move on to just one or two other questions.

Q358 Steve McCabe: If, when you have done all your checking, the pilot does prove to have been a success, does that mean you will need less staff to operate that kind of system in the future?

Dame Helen Ghosh: As you know, there are plans, over the SR10 period, to reduce the staff of the Border Force by around 900 people, from almost 8,000 people at the start of the period. But that is driven as much by technological introductions like e-gates, as well as a risk-based approach. Border Force will be getting smaller, although it has been protected to some extent from the overall level of cuts. We will also want to look at how we use staff to make sure that we are using staff at the times when there is the greatest passenger pressure. Some of the things that we have instituted recently, around more flexible rostering and teamworking, should help us with that too. So, that is how we will respond to these pressures against an overall shrinking work force.

Q359 Chair: Excellent. Let us now move on. These are really yes-no answers, because it is factual rather than discussion. You were informed about the unauthorised extension on the Thursday morning, is that right?

Dame Helen Ghosh: Yes.

Q360 Chair: Had you had the benefit of seeing the e-mail that was sent from Brodie Clark to Rob Whiteman at 7 o’clock in the morning, which is the subject of our request to the Home Secretary? Had you seen that e-mail?

Dame Helen Ghosh: I had not, but it would not have changed the view either of myself or of Rob Whiteman, who made the decision to suspend, about suspension.

Q361 Chair: But you hadn’t seen it when he had the discussion?

Dame Helen Ghosh: I hadn’t seen it at 8.30 when Rob came in.

Q362 Chair: But you have seen it subsequently?

Dame Helen Ghosh: I have seen it subsequently and I know its contents.

Q363 Chair: Excellent. That is very helpful. Did you know about the discussion that had been taking place between Rob Whiteman and Brodie Clark concerning his early retirement?

Dame Helen Ghosh: I was aware, when Rob Whiteman said he was proposing to suspend Brodie for-

Q364 Chair: At about what time was this?

Dame Helen Ghosh: About quarter-past or half-past 8 in the morning. Rob Whiteman speculated that Brodie might decide to leave the Department as an alternative. I simply noted that that was possible.

Q365 Chair: You didn’t say, "This is a bad idea"?

Dame Helen Ghosh: I did not say it, but I will come back in a moment to say this is a bad idea. I know that, as Rob Whiteman has said, there were then discussions between the HR team-not in any detail-between Rob Whiteman and Mr Clark. At the end of the day and, in particular, in-

Q366 Chair: Sorry, let’s get the sequence right. We were then told by Rob Whiteman that there was a meeting of the board of management of the UK Border Agency where they discussed and agreed to the retirement. There was no meeting of the board of management?

Dame Helen Ghosh: I will check the record. I am not aware of that. My understanding was that predominantly it was a discussion between Joe Dugdale, the HR Director of UKBA, and Brodie Clark on what the terms of a departure might mean.

Q367 Chair: So nobody else was involved in this discussion.

Dame Helen Ghosh: Not as far as I am aware, but I should say that it would not matter anyway because, when it comes to the terms of a departure of a member of the senior civil service of the Home Office-back to Mr Michael’s point-that is for my approval. So whatever they had decided, it would ultimately have had to come to me for decision.

Q368 Chair: Of course, and you took the decision that retirement was not an option.

Dame Helen Ghosh: I discovered at the end of the day-

Q369 Chair: Meaning 5 o’clock? A civil service day?

Dame Helen Ghosh: No, no. I can assure you, the civil service day-I was probably informed of it at about 8 o’clock that evening, 12 hours after the initial meeting. I had been told that he was proposing to retire.

Q370 Chair: At 8 o’clock?

Dame Helen Ghosh: Ish-in the evening of the Thursday. I understood at that stage that he was simply retiring-i.e., as if I suddenly said to Gus O’Donnell, "I am going to retire. Thank you very much", and go. I thought that he had simply decided to leave. I then discovered that he had been offered what I would call "enhanced terms" under the voluntary early retirement for staff over 60, which included an additional package: i.e., on top of what I would get if I stood up and walked out now-of my lump sum and pension. He had been offered an additional amount of six months’ pay and, I think, three months’ pay in lieu of notice.

Q371 Chair: And this was done by whom? By Mr Whiteman?

Dame Helen Ghosh: No, the negotiation was done in all good faith by the HR director, who believed that that was on offer. At that point, having been told early in the evening of the Thursday, I think it was, I concluded that it was quite inappropriate under the circumstances, and given the seriousness of the issue for which he had been suspended-that is, going against ministerial instruction-it would be quite inappropriate to offer any kind of enhanced package.

Q372 Chair: You would have accepted the other package.

Dame Helen Ghosh: If he had simply said, "I wish to depart", of course, there is nothing we can do to prevent anyone saying, "Thank you, I’m going."

Q373 Chair: It was the enhanced nature-

Dame Helen Ghosh: It was the enhanced nature of the package that seemed wholly inappropriate under the circumstances. So I then had a meeting with Rob-

Q374 Chair: At what time?

Dame Helen Ghosh: Again, I don’t know-about 8.15 the following morning, on the Friday. I said, "Given the circumstances of which I am now aware, I think it’s wholly inappropriate to offer an enhanced retirement package, so I would like us to return to the point where the suspension proceeds."

Q375 Chair: During all these negotiations, you had no conversation with the Home Secretary or the Immigration Minister?

Dame Helen Ghosh: As you would expect on a day like that, towards the end of that day the Home Secretary had a round-up meeting with myself and-I am trying to remember-Rob Whiteman, probably our communications director, probably the special advisers.

Q376 Chair: What time?

Dame Helen Ghosh: Late that afternoon-6ish, 7ish-and at that stage, just seeking a situation report on what had happened in the course of the day. But she did not put any pressure on me to change my view about retirement, and I have to say it was entirely my own decision, given my understanding, as indeed emerged later that evening, that it was an enhanced package.

Q377 Chair: So no Minister said to you, "We are furious about what’s happening. This man must not be allowed to go"?

Dame Helen Ghosh: "And I insist that you withdraw this offer." Exactly.

Q378 Chair: Had he said, "I’ll take what’s due to me without anything extra", he would have got it?

Dame Helen Ghosh: Because in employment law, I believe, as I was advised at the time, there is no way that we could have prevented him from doing so.

Q379 Chair: Do you think that all of this could have been handled slightly differently-better?

Dame Helen Ghosh: I believe that we followed the processes and procedures that we should have followed, as an employer, but of course, the various inquiries will tell us whether there were any failures in that, and we will co-operate wholly with those inquiries.

Q380 Chair: One final question about Graeme Kyle and Carole Upshall, who are still employed but suspended.

Dame Helen Ghosh: Suspended on a precautionary basis.

Q381 Chair: What exactly does that mean-"precautionary basis"?

Dame Helen Ghosh: For the purposes of our misconduct policy, it means there is no implication for their future in terms of having anything on the disciplinary record. If you suspend someone on a precautionary basis because you feel that something needs to be investigated, it doesn’t stay on their file.

Q382 Chair: I see. Now, looking back at what’s happened, do you regard Brodie Clark as a rogue official?

Dame Helen Ghosh: I believe that Brodie Clark had a long career in a number of high-profile, high-risk jobs, and that he always led from the front.

Chair: I am not sure whether that is a yes or a no.

Q383 Michael Ellis: Can I go back to the retirement point? Mr Whiteman said that the possibility of Mr Clark retiring was raised, but that you had intervened-you explained what happened there-saying that that was inappropriate. I am less interested in the timeline and the like than in your thinking process at that moment. Did you effectively say that you did not consider it appropriate because you were satisfied, as head of the civil service in the Home Office, that Mr Clark had acted outside of ministerial authority? Is that why you decided that it would be inappropriate to give him an enhanced package or anything more than he was entitled to by law?

Dame Helen Ghosh: I was aware-although of course subsequent investigations will comment on that-that we had suspended him on grounds that could potentially lead to a serious misconduct charge. In those circumstances, to spend taxpayers’ money on an enhanced package for that person to leave the Department seemed wholly inappropriate. That is why I took that view.

Q384 Michael Ellis: You were concerned that that could have opened you up to criticism in terms of being frivolous with taxpayers’ money?

Dame Helen Ghosh: Well, I actually thought that it was wrong, and incidentally, that it could potentially open me up to criticism, because I believe in personal accountability.

Q385 Mr Winnick: You said in a reply to the Chair that Mr Clark had a long career. Was it a distinguished career?

Dame Helen Ghosh: As I said, he had a career in a variety of high-profile, high-risk jobs, to which he was appointed on the basis of his previous record. That is why I put it as I put it.

Q386 Mr Winnick: Well, we note that you avoid using the word "distinguished". As far as the suspension is concerned, obviously, from his point of view, he feels a very strong sense of injustice that he was suspended without being able to give his side of the story. After all, as you yourself have admitted today, Dame Helen, it amounts to the difference between 2007 and the pilot agreed to by the present Home Secretary. The sense of injustice which is so much in his mind, and which he expressed to the Committee, is understandable, is it not?

Dame Helen Ghosh: To go back to the evidence that Rob Whiteman gave in the discussion on the Wednesday evening and Thursday morning, Mr Clark admitted to Rob Whiteman that he had gone beyond the terms of the pilot, that he had not told Ministers that this had happened, and that what he had done was wrong. To pick up your point about right of hearing, the way that our misconduct policy works, as indeed it works in all large organisations of this kind, is that the line manager-in this case, Rob Whiteman-is right to suspend an individual pending an investigation if they believe that there is some serious issue to be investigated. Rob was absolutely following that guidance.

Then there is an investigation, which is what would have been carried out into Mr Clark by Dave Wood, but of course Brodie Clark then resigned. In the course of that, he would have had the chance for a hearing, supported as necessary by his union representative, a lawyer or whomever it might be. The disciplinary process which Rob Whiteman triggered was completely in accordance with our policy and would have offered Brodie Clark that chance to respond.

Q387 Mr Winnick: Mr Clark said in his opening statement that he is not a rogue officer. Clearly, he feels that he was named and shamed. Given the high profile of his position and the political impact of immigration controls and the rest of it, wasn’t it obvious that if he was suspended in the way he was, which you have just tried to justify, it in fact amounted to being named and shamed, giving a very sorry end to what he, if not you, considered a distinguished career in the civil service?

Dame Helen Ghosh: As I said, in deciding to suspend Brodie Clark, Rob Whiteman was absolutely following to the letter the kinds of criteria set out in our misconduct policy. I believe that the Committee would want us to be concerned if there were apparent evidence of any official flouting ministerial instruction in such a way that could have-

Q388 Mr Winnick: Which, of course, he strongly challenges.

Dame Helen Ghosh: And that is going to be the subject of the inquiry of Mr Vine and, in parallel, of the two officers whom Keith described.

Chair: Indeed. Dame Helen, we would be concerned, but since you are not giving us the documents we can’t be as concerned as we would like to be, because we haven’t seen the information.

Mark Reckless has the final question.

Q389 Mark Reckless: Dame Helen, given that you are not providing us with the documents that we need to give a judgment, and the only inquiries into this are by people appointed by and answerable to the Home Office, how are the public or Parliament to have any confidence in the outcome?

Dame Helen Ghosh: John Vine’s report will be made public and, as the Home Secretary said in her letter to the Chairman, on the disciplinary side we are absolutely adhering to the terms of the arrangements between the Executive and the Select Committees. It wouldn’t be appropriate to show all the material about the disciplinary case, but we will give you a summary of what the outcome was and what the lessons are to be learned. But as the Chairman has said, he will be writing again to the Home Secretary and I will take the feeling of the Committee back to her.

Q390 Chair: We are concerned because we saw a leaked version of Dave Wood’s report-purported report-in the Daily Mail last week, so somebody in the Home Office has managed to give a version to the Daily Mail. If the Daily Mail has it, I think it appropriate that a Committee of the House should have it-unless that was a rogue report being leaked.

Dame Helen Ghosh: As you will be well aware, we deplore any leak of material, and I have asked my head of security to investigate all the leaks-a number of leaks-that have taken place in the last two weeks under proper procedures.

Q391 Chair: So, is it correct-was that in fact Dave Wood’s report that was released to the Daily Mail, if the head of security is investigating it?

Dame Helen Ghosh: If there were any leaks, then I would be investigating them. But I come back to the point that material relating to disciplinary inquiries is, in any way, outside the terms of material we would release to a Select Committee while the disciplinary inquiry was going on.

Q392 Chair: Are you missing DEFRA, Dame Helen, or are you glad to be at the Home Office?

Dame Helen Ghosh: As one of my colleagues commented, I have the best permanent secretary job in Whitehall and I am enjoying it very much.

Chair: Thank you. Excellent. We will now release you-and thank you so much for staying so long-because we have the Immigration Minister. We are most grateful. Thank you.

Examination of Witness

Witness: Damian Green MP, Minister of State for Immigration, gave evidence.

Q393 Chair: Minister, please accept my apologies and those of the Committee for keeping you waiting for more than half an hour-almost 45 minutes. But as you know, these are important matters that have occupied the time of the Committee.

I intend to avoid any lengthy introductions, because you sat through the evidence and you know what’s what. Also, I assume that have either seen a transcript of the evidence that Brodie Clark gave last week or you have listened to that evidence. I assume I am correct in thinking that you are up to speed with all this stuff.

Can I put to you points made by Brodie Clark concerning you and Pauline Neville-Jones? In the second question that I put to Brodie Clark last week, I asked him whether or not the original pilot was put before Ministers and he responded, "I presented the case on three elements of the pilot to the Immigration Minister and the Security Minister in January of this year. Both Ministers agreed." When I asked who they were, he said, "Damian Green and Pauline Neville-Jones. Both Ministers agreed that we should proceed with the pilot which comprised three elements." In response to question No. 5, he went on to say, "Damian Green asked me to proceed with these three elements, but I chose at that stage to approach the Home Secretary and ensure that she understood what the plan was to introduce these three elements into our business." Is that correct? Was that put to you by Brodie Clark? Did you sign it off? Did he subsequently ask the Home Secretary to reconsider?

Damian Green: No. As the permanent secretary has already explained, that’s not correct. It was a preliminary submission sent to me and Baroness Neville-Jones. We both responded, effectively, "Yes, but…", in a way that former Ministers on this Committee will understand. Brodie Clark responded in detail to Baroness Neville-Jones. It didn’t come back to my "but", as it were, until April; that was the next stage, where he put forward another submission, which was very different. It was clear that the January submission was a preliminary, first set of ideas. As I said, my response was, "Yes, but."

I believe in risk-based targeting at the border. I think that is the way ahead, so the principle seemed to be fine, but in April the substantive submission came both to me and to the Home Secretary. She and I discussed it and said, "No, we don’t want to proceed with that because we want a much wider and deeper strategy. Rather than just picking individual measures, let’s put this in a proper strategic framework so that we can have a proper strategy for securing the borders for the next four years, taking into account other things that haven’t happened yet but will happen, such as rail liberalisation throughout Europe, because we have more international rail services into this country."

At that point it was specific that these individual proposals should not be proceeded with until we had had a proper discussion. As the permanent secretary just explained, that discussion took place between May and July with various submissions going back and forth. In July, the Home Secretary and I authorised the two elements of the pilot that then happened.

Q394 Chair: In respect of your taking office as Immigration Minister and the 2007 guidance-if we can call them the 2007 guidance, it is easier for people to follow what is going on-you were not aware of the 2007 guidance in all of your visits to airports and seaports? You have been doing your job, both as Immigration Minister and as shadow Immigration Minister, longer than anyone else on the Government Front Bench, apart from the Chancellor, I understand, so you know this stuff. In all the visits that you have made over the past five years or so since you have been the shadow Immigration Minister and then the Immigration Minister, you were not aware of the 2007 guidance?

Damian Green: Very specifically, the 2007 guidance was not put in my introductory pack as a Minister, so, to that extent, I was not aware of it. As you say, I have been marching this beat for some years now, so obviously I knew that there were emergency procedures.

May I have a go at trying to explain the 2007 guidance in lay terms? I sense genuine confusion, and I do not blame anyone for being confused, because it gets confused by jargon. The 2007 guidance says that, if there is a health and safety problem, you can stop checking some of the details of EEA citizens-specifically European citizens. The suspension of biometric checks is a suspension of checks on a completely different group of people, because we do not take fingerprints from EEA citizens; we only take them from people from a set of countries where we require people to have a visa before they can come to this country.

So it is absolutely wrong in principle to say that you can stretch the 2007 guidelines to include the people covered by the fingerprints that we now discover were being wrongly not taken. That seems to be one of the central confusions about this debate, that somehow the 2007 guidelines could cover what was not happening. They just can’t.

Q395 Chair: You knew, did you, that there was a request to go beyond the pilot? Did you know of the Home Secretary’s explicit instruction that Brodie Clark should not go beyond the pilot? Did you know of that e-mail that was sent after a discussion between him and her private office? Would you have been copied in to that information?

Damian Green: Of course. To clear it up, what happened was that the proposal for, if you like, a three-point pilot, rather than a two-point pilot, came up in April. That was explicitly rejected by the Home Secretary and me. If these documents are ever published to the Committee, and I have heard what you have said about that, that is what they will show. As I said, it was so that we could put it in a proper context. As a result of that, a meeting was organised in May where we could have a proper discussion about border strategy looking ahead five years.

Q396 Chair: And you know of the e-mail that said, "Please don’t go beyond. This is an explicit instruction not to go beyond"?

Damian Green: It was not, "Please don’t go beyond," because we were not at that stage. It was to say, "You have suggested three things. Actually, none of those. Let’s have a proper discussion about strategy."

Q397 Chair: No, subsequent to that. In July.

Damian Green: In July, we had various iterative discussions, as you do inside Whitehall. At the end, the Home Secretary and I cleared what became the pilot, and nothing else.

Q398 Chair: There is some criticism that you, as Immigration Minister, ought really to have been doing the heavy lifting on this, but at the end of the day, the Home Secretary has been very much to the forefront. Given what you have seen and what the Committee has seen over the last two weeks, hearing Dame Helen’s evidence about the way in which the Border Agency is operating, and noting the fact that she talked about a culture at the highest levels of the border force, do you feel there was some responsibility on the part of Ministers to sort out what appears to be rather chaotic decision making in respect of what the Border Agency was doing?

Damian Green: I do not think it was chaotic at all; I would not characterise it like that. Clearly, what seems to have happened is that very relevant information was withheld from Ministers, and, as you say, it appears to be have been happening for a period of time. Of course, as Immigration Minister, I am informed of emergencies; that is what I find most disturbing. I have heard people say, "Shouldn’t you have known if things were happening in an emergency situation?" Of course I am informed about emergencies. There are emergencies in the immigration system from time to time, as everyone knows, and some of them are directly relevant to this type of thing. Since I have been Minister, for example, there has been a fire in one of the terminals at Gatwick, which required the evacuation of large numbers of people, some of whom were evacuated from air side to land side, so the agency had to chase after them and try to check them through retrospectively, as it were. Those kinds of things happen, and I, as Minister, would be informed of them. So if the 2007 guidelines were being used in an emergency, as they were meant to be, I would have expected to be informed.

Q399 Chair: And you weren’t informed. Should you have asked on any of the visits? Why did Mr Vine ask? What superpowers does Mr Vine have that he discovered what was going on on the one visit he made? We have all these highly paid officials wandering round doing inspections, as well as Ministers and Prime Ministers in various Governments-this is not just about this Government, because Ministers in the previous Government presumably went off to Heathrow airport-but nobody knew this was happening.

Damian Green: Clearly, nobody knew that officials had designated things to happen that they should not have. I visit Heathrow and other ports regularly, and I always talk to people on the front line. I always ask them, "What could improve your job?" Nobody ever said, "Oh, by the way, you realise we’re not taking fingerprint ID?" Indeed, the last time I was at Heathrow, I saw people taking fingerprint ID. I can only assume-it seems intuitively plausible-that the people on the front line did not know that what they were doing or were not doing was in some way without ministerial responsibility. They had been told to do something, so they would not know about that.

If I can just clarify something, you said earlier on to the permanent secretary that John Vine happened to be at Heathrow, but John Vine was specifically doing an inspection at Heathrow, so it is not surprising that he turned over some stones-that is what independent inspectors are for. The independent inspectorate was set up by the previous Government. I supported it then; I still support it now. I think it is extremely useful. This whole episode illustrates the value of having an independent inspector.

Q400 Lorraine Fullbrook: Minister, Mr Clark admitted to me last week that he had suspended fingerprint checks without ministerial approval, and he had subsequently made the request to the Home Secretary that those fingerprint checks be suspended, but that request was rejected. From that, it was my contention to Mr Whiteman that Mr Clark’s reasons for doing that went back to the 2007 guidance. Mr Clark had, in effect, stretched the 2007 guidance, which, as I understand it, is designed for emergency situations, and made it routine guidance to his officers. Would you agree?

Damian Green: Well, from what he said, it clearly was not being used only in emergencies. But as I have just explained, even if you were using the 2007 guidance as a routine tool of management, which you should not be-it is meant for emergencies-that would not permit you, under any circumstances, to stop taking the fingerprints of people who require visas to come into this country. The 2007 guidance specifically says that you can relax some checks on EEA nationals, who, by definition, do not require a visa.

Lorraine Fullbrook: Thank you.

Q401 Chair: You did not answer my point about your visibility vis-à-vis the Home Secretary. Do you not think that you should have done a bit more of the heavy lifting?

Damian Green: I feel that I have done quite a lot of heavy lifting. In the last fortnight, I have answered Home Office questions, wound up a debate on this subject and answered an urgent question on this subject. We then took a three-day recess and I am now at the Select Committee. That is everything that I have done in the last two weeks. That feels like quite heavy lifting to me.

Chair: That was a planted question from me.

Q402 Alun Michael: You said explicitly that information was withheld from Ministers. I have some sympathy with that point. Government Departments often work on auto pilot unless and until someone stops them. Mr Brodie Clark, whatever the detail of e-mails and communications with Ministers, clearly assumed that Ministers would have known of the common practice. That means that he believed that it was common knowledge within the Home Office, which includes the UK Border Agency and the border force. Should it not have been up to the top management of the Home Office to be identifying that there was an issue here and checking with Ministers to see whether they were happy with what was happening?

Damian Green: The salient point here is that it was not just Ministers who did not know that this was going on. It was not just the chief executive of the UKBA, but successive chief executives of the UKBA. There is a genuine point here. How can you ask someone, "Are you not telling me something that you should be telling me?"

Q403 Alun Michael: You quite often need to ask the question, "What aren’t you telling me?"

Damian Green: As Minister, I do ask that question, but if they then don’t tell you, we enter a Rumsfeldian world of unknown unknowns.

Q404 Alun Michael: Are you sure that that is the case? There have been changes. We have a new chief executive in the Border Agency and a new permanent secretary. The implications of the evidence that Mr Clark gave to us were that people knew what was going on. Clearly, he found it strange that Ministers did not know.

Damian Green: I find it strange that he could have thought that just because he knew something, then everyone else knew it. As has been shown over the years, the UKBA is an organisation whose internal workings quite often become external. At no stage did any of the people we talked to at the Border Agency or anywhere else say, "By the way, we are doing these things and perhaps we shouldn’t be." If they were saying that, it may have been going up the management chain in the way in which it would have done in Whitehall, but it appears never to have got beyond Mr Clark.

Q405 Alun Michael: Have you asked people in the Home Office-obviously not the new permanent secretary or the new head of the agency-whether this was known at higher levels at an earlier stage?

Damian Green: That is precisely one of the questions that the investigations are now looking into. We will know soon enough when we get the results of those investigations.

Q406 Mark Reckless: Minister, can I take you to the interim operational instruction from 28 July? We wrote to both the Home Secretary and to David Hallett asking if they or Home Office officials had seen or signed off on this memo or operational instruction. They told us that no one at the Home Office had approved it and that it was a matter for UKBA who had signed it off. But we are none the wiser as to who, if anyone, in the Home Office had seen this operational instruction of 28 July. Could you enlighten us?

Damian Green: No, it was kept at official level within the Border Agency and that would be entirely normal. It is something that would not come to Ministers or necessarily, or indeed at all, to the permanent secretary because it is an operational instruction. There are thousands of these operational instructions in any year and they can range from an important policy such as this to somebody’s extension number changing. They are not the sort of thing that you would want clogging up the ministerial box.

Q407 Mark Reckless: So we are clear that Ministers and the permanent secretary had not seen this. Would any of the more junior officials at the Home Office have seen this operational instruction?

Damian Green: We are getting into this territory of what is the Home Office and what is the UKBA. The UKBA is part of the Home Office, so UKBA officials would have seen it, not least all the people who were having to implement it. It would have been widely seen around the border force.

Q408 Mark Reckless: At that time, between July and August, they got the shift of the policy function-very sensibly, perhaps-from the UKBA to the Home Office, for the ministerial oversight of policy, but also, at the same time, there was the move from the Home Secretary meeting on average at least monthly with Brodie Clark to at most one meeting following June. What impact did that have on the flow of information to Ministers?

Damian Green: None at all. I do not think there was a sense that the Home Secretary was meeting Brodie Clark less because of the split between operational and policy advice. I think it is happenstance, but during the period of the pilot, I met Brodie Clark nine times, so he had ample opportunity to tell me, "By the way, you ought to be aware that we are not taking secure ID as well", and he did not do so-that is quite a heavy period over the summer period, to have met a single official nine times. I was seeing him very regularly, not least because I wanted to discuss how the pilot was going, on top of the weekly reports we were getting.

Q409 Mark Reckless: Finally, on this operational instruction, there is a paragraph within that saying that if the officials on the border force-presumably junior-for any reason, wanted to extend or take further measures, they needed to get that approved by the UK border force duty director. What do you make of that paragraph?

Damian Green: That is interesting because if a duty director thought, "I am doing something that goes beyond guidance", he would then refer up-the standard sort of large-organisation thing, where you would refer up further. I would hope that is the way it would operate, but again, clearly one of the things that the investigations will need to look at is how that management chain works in practice.

Q410 Steve McCabe: Minister, if the whole purpose of the pilot was to release resources for intelligence-led targeting of higher risk groups, why was the trigger for implementing this the extent of queuing?

Damian Green: It was one trigger but as we have established, the original submission was in January and the original meeting I had with Brodie Clark-

Steve McCabe: It is a funny thing to pick, isn’t it?

Damian Green-about this was last December, when we were entering a period, once you get past Christmas, when things are relatively quiet. You are for ever trying to balance two things. First of all-and absolutely primarily-you want to keep the border secure, but at the same time, you want airports and seaports to keep running smoothly, so how you do both at once is a question that everyone faces. The risk-based approach or the actual-I am sorry, I am talking jargon now. Pointing your people, resources and technology at the flights and the individuals that are most risky is what this is about. What we have discovered from the pilot-assuming that the pilot can be cleaned up, given everything else that was happening-is that that seems to work. We will get the full evaluation, and all of that.

May I take this opportunity, Mr Chairman, to fill in some of the figures that you asked for?

Chair: That would be very helpful.

Damian Green: In August 2010, we intercepted 737 clandestines at the border.

Q411 Chair: This is the issue of the 10% increase.

Damian Green: Exactly. In August 2011, it was 809. In September 2010, it was 661 and in September 2011, it was 721.

Looking at forged documents is obviously another important thing we want to do: in August 2010, there were 128 and 135 in 2011; in September 2010, there were 121 and in September 2011, there were 179. As I say, that is initial information. It will all have to be evaluated.

Chair: Of course.

Damian Green: But just on those two important issues, it looks like this kind of approach makes the border more secure. If you can do that and, at the same time, stop queues peaking at the levels they tend to peak at, that seems to me to be, overall, a good thing to do.

Q412 Steve McCabe: Thank you. You mentioned forged documents; have your officials brought to your attention that they have a major concern about Jamaicans travelling on fraudulent UK passports?

Damian Green: Yes, there a number of countries around the world where we have particular issues, and it is no great secret that Jamaica is one of them. Indeed, one of the two countries in the world where we have not just UKBA people but specifically border force people trying to stop things before they get to this country is Jamaica. There is a lot of drug smuggling and things like that, so there is a nexus of problems that we have. We co-operate well with the Jamaican authorities, but yes, it is an issue.

Q413 Steve McCabe: May I ask one last thing? Most of this came to the attention of the public and of Parliament because of leaks from within the UKBA. Given your own history, do you agree with Dame Helen that leaks should be deplored?

Damian Green: I think that that is always the official position of Government. The best thing I can say is that I can guarantee to all members of the Committee-and indeed to the shadow Minister for Immigration-that, unlike previous Administrations, I will not be arranging for anyone to be arrested if they get a leak from the UKBA.

Q414 Steve McCabe: I think we will all be glad to hear that. Do you detect that these leaks are a measure of dissatisfaction on the part of staff within the agency? Is that why there have been so many leaks over this issue?

Damian Green: As I say, and as we all know, it is one of the organisations that has always been fairly public in its internal discourse, and once something like this comes up, inevitably a lot of people will go scouring around for individuals to tell them what is going on. That is what happens at times like this.

Q415 Mark Reckless: Minister, the data that the Home Secretary provided us with showed that the number of arrivals into the country was down by 8.5% year on year in July, and by 14% year on year in August. This was in the table at the bottom of her letter to us of 14 November. Do you know why entries were down so sharply, and do you think that this had an impact on the perceived success of the pilot?

Damian Green: I think entries are down because there is a recession on around the world, and fewer people are travelling. There is no particular reason why it should have any effect on the pilot one way or the other, I would have thought. The levels are still very, very high. Something like 100 million people come into this country every year, so to put it mildly, we have a large enough sample to have a decent experiment with.

Chair: Michael Ellis has a quick supplementary question.

Q416 Michael Ellis: Thank you, Mr Chairman. Minister, you have said, I think, that you saw Brodie Clark on nine separate occasions, so there were clearly a number of opportunities for the matter of measures outside of ministerial authorisation to be raised with you. When you saw him, you would have seen him with other officials present, would you?

Damian Green: Normally, yes. There would certainly be someone there from my private office. That is a mixture of meetings, some of which would be to discuss the pilot. There are other things going on, and some of the meetings would be to discuss issues of international rail travel or something like that, at which there would be lots of people present. Some of them would be meetings with outside bodies.

Q417 Michael Ellis: We have also heard that there is something called a weekly report that comes through. The Home Secretary gets one, and you get one as well; is that right?

Damian Green: Just to avoid confusion, there are two. I get a weekly report from the UKBA chief executive every week. That happens all the time, and indeed I have a weekly meeting with the chief executive as well, at which we discuss what is going on. Separately, during the course of the pilot, Brodie Clark was providing a weekly report to me and to the Home Secretary, so that we could check its progress.

Q418 Michael Ellis: In his weekly reports, did he say anything at any time about going outside the ministerial authority?

Damian Green: None of the reports-

Chair: I think that the Minister has already told us that, Mr Ellis.

Michael Ellis: Sorry; could I just ask the Minister to finish his reply?

Damian Green: None of the reports that I received told me anything that was outside ministerial authorisation.

Q419 Michael Ellis: There is a report, isn’t there, that additional measures to those authorised by Ministers were at one point included in a weekly report, but then not sent on to your office? Have you heard anything about that, or can you confirm it?

Damian Green: I read that, as I imagine you did, in a newspaper, but-

Q420 Chair: It is not correct?

Damian Green: I do not know if it is correct or not, because I have not seen the basis on which the report was produced.

Chair: Thank you. Dr Huppert?

Q421 Dr Huppert: I am keen to try to move from staring at the past to working out the future. I have a very brief question about evidence and statistics. You said that there is still work to do to evaluate the pilot, and you are presumably aware that the Home Office has been criticised for some of its comments about drug seizures. Sir Michael Scholar wanted reassurance that the statistics will always be released in accordance with a code of practice. Presumably you can give an assurance to the Committee that that will be true of everything that comes out of the Home Office as regards drugs, and as regards analysis of this pilot.

Damian Green: Absolutely. I have responded to Sir Michael’s letter, pointing out that nobody could have confused the press release about drug seizures with official statistics. Indeed, the press release explicitly said that it was management information. It was very clear that they were not official statistics. We seek to ensure that all our use of official statistics is properly done.

Q422 Dr Huppert: I am very glad to hear that. If we assume that the pilot has been properly evaluated-let us assume for the moment that it turns out to be the success that was initially indicated-what is your vision for the future of border controls? How far would you like to go down this risk-led route? Can we have an assurance, as I asked the permanent secretary for, that this particular incident will not jeopardise what will hopefully prove to have been a successful pilot?

Damian Green: As I said, and as the Prime Minister and the Home Secretary have both said, a risk-based approach needs to be the basis for how we make our border more secure in times ahead, particularly if, as I imagine they will, passenger flows increase again. If they are down because of the recession, the world economy will recover and we will get even bigger flows, so we will need to be even sharper on where we point our resources. Obviously, the details of how we do that will depend on the evaluation of the pilot, and the other reports that we are waiting for from John Vine and others.

There is, however, a countervailing view that says that we should never stop checking anyone-every check we can devise, we should do on everyone; we should treat everyone the same. I think that this Committee could contribute hugely to this debate. I would be interested to know if you can establish consensus on whether you think risk-based controls are better than one-size-fits-all controls. I think that that would be a constructive and useful contribution to the debate.

Q423 Dr Huppert: I would certainly provide a steer towards risk-based, intelligence-led controls. What options are there for taking this further? How can we become sharper at using that?

Damian Green: The root of it is early intelligence and information. That is why this Government, even through the difficulties of getting rid of the previous e-Borders main contractor, because it was running behind so badly, are determined to carry on with e-Borders. We already have 90% of flights from outside Europe covered by that. It is that kind of early intelligence-intelligence before people get on a plane-that will help us make our borders secure. The old idea that the border starts at Dover or Heathrow will become increasingly old-fashioned. I want to export our borders, so that they start at airports around the world, and so that, as is the case now, if people come through France, the borders start at Calais or Gare du Nord, or at Brussels rather than Dover. We have already stopped 68,000 people who would otherwise have got on planes flying in the past year, because of intelligence that we have collected. It seems to me that that is the route that we need to go down.

Q424 Chair: Thank you. Just two issues. First, did you know that face-to-face interviews had stopped in posts abroad?

Damian Green: Well, they stopped before this Government came in.

Q425 Chair: Are you considering reintroducing them in view of the fact that, in a number of reports, the Committee has highlighted the issue of forced marriages and, indeed, in certain posts-not all-since we are talking about a risk-based system, a concern about terrorists entering the country?

Damian Green: To some extent, of course, we are effectively reintroducing that with our proposals on marriage. I share your concern, Chairman, about forced marriage. We have said that you will have to demonstrate knowledge of English to a basic level before you come here to get married; people will have to show that before they come here, so for a significant vulnerable section of those who come here, we have introduced face-to-face interviews. Obviously, we do it on a risk basis. As you say, for terrorists-anyone with any remote terrorist suspicions surrounding them-we would take very strenuous measures.

Q426 Chair: Excellent. The Home Secretary has written to me about Sheikh Salah, because we wrote to her about his arrival. Do you know-if you do not have the answer, would you write and tell us?-if Sheikh Salah was fingerprinted on arrival at Heathrow on 25 June? You may not know this. We just wondered whether he was one of the people who got in because of the possible unauthorised extension. No one can give us an answer to that.

Damian Green: Well, yes, 25 June would have been before the pilot, so it would have been something that was happening anyway.

Q427 Chair: Would you be able to provide us with that?

Damian Green: I will check that out, certainly.

Q428 Chair: We know that Mr Whiteman is going to get reports every six hours. As a result of what has happened, will you be getting more detailed reports? Will you be able to ask more questions about what is happening in the UKBA?

Damian Green: Yes. I think it is part of the improvement programme that, clearly, the UKBA needs. The UKBA is now a mixed bag, a curate’s egg-it is good in parts, but it is nothing like good enough in other parts. What we need to happen is to get more information, and to have it spread around so that we can take decisions earlier and faster. That is very much Rob Whiteman’s vision, which I share. Indeed, I was at Heathrow last week looking at the place where there will be a new central control, where information from around the airport can come in. It has never happened before; it is now happening.

Q429 Chair: Are you still on target, despite everything that has happened this year, to meet the target that the Prime Minister set for reducing net migration from hundreds of thousands down to tens of thousands during the lifetime of this Parliament?

Damian Green: Yes. That is why we set it for the lifetime of this Parliament-because we know it is turning an oil tanker around, so it will take some time. Indeed, all our measures will not come into effect until next year. Absolutely, by this time next year, certainly, we will have all the measures in effect that will enable us to get immigration down to the sustainable levels that we pledged.

Mr Winnick: We shall see.

Q430 Chair: On a lighter note-I do not know whether this is good news or bad news-in The Times yesterday it was reported that the number of migrant birds had declined by 70% since 1995. I do not know whether this is Government policy, or whether it has just happened.

Damian Green: I regret to say that-

Alun Michael: Careful, Minister-don’t wing it.

Damian Green: Very good. This is one area of control of migration that, first, I am not responsible for and, secondly, I rather regret.

Chair: Minister, thank you very much indeed.