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Baroness Ashton of Upholland: My Lords, the issue for the re-grading is to look at the way in which the A/B and E/U boundaries are determined. We begin working out the grading around those two boundaries and, in a sense, the other grades are then slotted in. The question raised was whether, after all the papers had been examined, the recommendations the examiners put forward for the boundaries were not what was expected.

After all the exams had been marked and all the students examined, the process looked at what happened to the boundaries to fit in the various grades. Mike Tomlinson's team went back and looked at that issue in order to ascertain whether it was done in a way that deflated the grades. The process was therefore looked at across the board; it was not restricted only to those students who had asked for remarking because that is a separate process. The process looked at specific areas of concern in relation to specific subjects.

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Mike Tomlinson could give the noble Baroness a better technical answer and I am sure that he would be delighted to do so if she would like that. However, I am confident in saying to the noble Baroness that the boundaries have been examined, that the re-grading has been effectively done and that students can be absolutely assured that the marks they now have are accurate.

Baroness Walmsley: My Lords, I am surprised to find that this year's group of A-level students have not sprouted whiskers and tails because I know of no group of students who have been treated so much like guinea pigs. These students have been experimented on from the beginning of their school life. In view of that, it is surprising that they have achieved so much. We appear to have a very able group of students.

I am also surprised that their achievements were not predicted, given the explanation outlined by my noble friend Lady Sharp about the number of people who dropped out after the AS-level. Often the best predictor at A-level is the achievement of the same group two years previously at GCSE-level, when these students achieved a pass rate of 94.4 per cent. And guess what—at A-level they achieved 94.3 per cent. That is about 4.5 per cent higher than the previous two years. There was therefore two years' notice of the problem and clearly there was no need to worry about a perception of grade inflation. The group was achieving and from the beginning it was expected to achieve.

How will the Minister ensure that no future cohort of able children will be suffering from the same concerns about grade inflation and the same perceived pressure to change the grades around? Furthermore, can she reassure the House that no group of children will go through their school career as guinea pigs, as has been the case with this group?

Baroness Ashton of Upholland: My Lords, the noble Baroness will not be surprised to hear me say that I would not describe this group of students as guinea pigs but rather as recipients of a new strategy. It is interesting that despite the fact that noble Lords and the press have described the group as guinea pigs, they have been great achievers. One might therefore say that they have achieved so much not despite the new strategy but because of it. I am sure that we can debate that matter another time and no doubt at length.

I recognise the noble Baroness's understanding that one of the outcomes of the AS-level should be that students would be either awakened to work harder for the A2 or to make decisions about which subjects to continue with. That is one of the issues that Mike Tomlinson and the QCA need to examine very carefully. A perceived problem is also a perceived success and we must ensure that we address these issues firmly and properly. We have great faith that Ken Boston will be able to look at the issue constructively. He had been in post only a week or two at the beginning of the problem and he is now dealing with it most effectively.

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We must look at the matter carefully to ensure that we recognise the achievements and that Curriculum 2000 delivers for us and our students some good results.

Lord Burnham: My Lords, following a matter raised by my noble friend Lady Carnegy, if the whole exercise has been totally even-handed and not just a patch-up, there will have been a number of "downs" in the re-gradings as well as all the "ups". How many "downs" were there?

Baroness Ashton of Upholland: My Lords, I do not have the information about the downs and the ups. The issue was, as I said, whether students who should have received higher grades received deflated grades. The question of regrading has therefore focused on what happened at the boundaries between A and B and between E and U. We have made it clear that no student will suffer as a consequence of the regrading in relation to the results that he or she has already received. If I subsequently find more information which is relevant to the noble Lord, Lord Burnham, I shall indeed write to him and place a copy of the letter in the Library.

Baroness Seccombe: My Lords, if there was only a perception that there had been pressure from the QCA, and if the outcome of the exercise reveals that there had been no large-scale downgrading of examination results, would the Minister, with hindsight, think that it was right that Sir William Stubbs was dismissed so quickly? Why were the Secretary of State and the former chief inspector not aware that the standards expected for AS and A2 levels had not yet been determined?

Baroness Ashton of Upholland: My Lords, I turn first to the noble Baroness's second point. The issue of paramount importance raised by Mike Tomlinson is the guidance issued by the QCA on how the standards should be applied. Although that issue by itself might seem minor, it is absolutely critical in ensuring that the grades are applied effectively. We and the QCA will have very carefully to examine its future in relation to that point.

On Sir William Stubbs, as I have said in your Lordships' House several times, my right honourable friend believed that there had been a loss of confidence in the leadership of the QCA and, after much deliberation, determined that the best way forward would be to have a new chairman to lead the organisation. On that basis, she dismissed him.

Baroness Blatch: My Lords, before the noble Baroness sits down, may I point out that the question that both my noble friend Lady Seccombe and I asked was why the former chief inspector and the Secretary of State were not aware of the standards expected by the QCA?

Baroness Ashton of Upholland: My Lords, the noble Baroness needs to understand that, in all the dialogue

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with the QCA, there was a great amount of information and understanding about what was happening. We are saying that it is the QCA's responsibility to issue the guidance on standards. As I said, when Mike Tomlinson has completed his work, I shall undoubtedly have more to explain to the House and be able to examine these issues in detail. I am giving the noble Baroness the benefit of all the information that I currently have. The issue for the QCA is the guidance that accompanied the standards. As Mike Tomlinson and Ken Boston continue their work, we shall be able to provide noble Lords with more information. I shall do so with pleasure.

Enterprise Bill

8.15 p.m.

Consideration of amendments on Report resumed.

Lord Kingsland moved Amendment No. 28:

    After Clause 16, insert the following new clause—

(1) The Lord Chancellor and the Secretary of State may together make regulations—
(a) empowering the courts to transfer to the Tribunal for determination by it any issue arising in any civil proceedings the determination of which depends on whether provisions of Chapter I or II of the 1998 Act or Article 81 or 82 of the Treaty have been infringed where, in the opinion of the court making the transfer, the transfer would be conducive to the efficient conduct of the proceedings;
(b) making any rules that the Lord Chancellor and the Secretary of State may deem to be appropriate as ancillary to the power to make such transfers or to be reasonably required in connection therewith and in particular, but without prejudice to the generality of the foregoing, to the effect that—
(i) on making such a transfer, the court making the transfer may state facts that the Tribunal shall then treat as established for the purposes of determining the issues transferred to it;
(ii) after having made its determination, the Tribunal shall remit the matter to the court that made the transfer to it, declaring the determination of that issue by the Tribunal, which, subject to any clarification or amplification by the Tribunal of its determination that may be requested by the court that made the transfer, shall be then treated as a determination of that issue by that court;
(iii) enabling courts that have made, or have in contemplation the making of, such transfers and the Tribunal to co-operate together in any way that they deem to be appropriate to enable issues arising in the proceedings before them to be determined as efficiently as possible.
(2) The Lord Chancellor may appoint as president and as chairman of the Tribunal judges of any of the courts provided that, before appointing a judge of the Court of Session or sheriff courts under this subsection, the Lord Chancellor shall first consult the Lord President of the Court of Session.

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(3) In this section references to "the courts" are to the High Court of Justice and the county courts in England and Wales and Northern Ireland, and the Court of Session and the sheriff courts in Scotland.
(4) The power to make regulations under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.""

The noble Lord said: My Lords, some of you may recall from our consideration in Committee that what is now Amendment No. 28 sought to grant the civil courts the power to transfer to the Competition Appeal Tribunal competition issues that arise in private law claims based on alleged breaches of European Community and national competition laws.

The noble Lord, Lord McIntosh of Haringey, I believe, agreed to give consideration to the content of this amendment during the summer Recess. He obviously reflected long and hard, because it was not until 9th October that I received the result of his deliberations. I think that I can do no better than to quote from the communication that I received. The letter was in fact signed by the noble Lord, Lord Sainsbury of Turville, whom I am delighted to see on the government Benches today. It states:

    "We do not see the practical need for such a power. The effect of the Competition Act 1998 regime and, in due course, 'modernisation' on the number of Article 81 and 82-related cases heard in the courts is uncertain. We are confident that, where such cases arise, the courts will be able to deal efficiently with them. It is the role of the courts to build up the specialist body of law in a particular area. It is not necessary to create a specialist body or court on each occasion that something new and complex arises. Judges, particularly those in the High Court, where such cases could expect to be heard, already have to weigh technical evidence, including that relating to economic effects, presented by experts in a variety of cases. Economic evidence related to the consideration of Article 81(3), which has been highlighted as a particularly complex area, could be handled in the same way.

    "It is important to bear in mind, too, that, under the regulations being developed as part of the 'modernisation project', the competition authorities of the Member States will be able to submit written observations to the national courts on issues relating to the application of Article 81 and 82. With the permission of the court in question, they will also be able to submit oral observations to the courts. For these reasons, we cannot support an amendment along the lines suggested".

I would like to thank the Minister for giving this matter such careful consideration. However, I have to express considerable surprise at his conclusion. The European Court of Justice itself, sitting in Luxembourg, has decided that competition matters can be satisfactorily dealt with only by a specialist court. That is why the Court of First Instance was established.

The Court of Justice recognises that it is only by the concentrated and sustained development of skills by European judges that the jurisprudence on competition law will properly develop.

I should have thought that that lesson would not have been lost on the Minister with regard to our own judicial system. Indeed, there are many precedents for it in the High Court. The emergence of the commercial court is a classic illustration of how it was necessary to develop a specialist part of the High Court to deal with a particular type of case. Equally, in more recent times, it has been found appropriate to establish an

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employment appeals tribunal—another specialist branch of the High Court—to deal with employment matters.

Competition cases require an intimate knowledge of complicated national and international economic law. Given the wholly appropriate development of careers on the High Court bench, I see no prospect of any individual judge, in the course of his time at that level, developing anything like the necessary skills to handle complicated competition cases.

I therefore urge the Minister to reflect again on the conclusions that he has reached and set out so starkly in his letter to me; otherwise, the increasing momentum of domestically generated competition cases and the new approach of devolving European competition cases on the national court systems of the European Community will, together, result in a severe gap between the demands of the market for judicial guidance and the capacity of our judges to provide it. I beg to move.

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