Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021

Debate between Baroness Healy of Primrose Hill and Lord Lansley

Monday 12th July 2021 Grand Committee

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend the Minister for his introduction to these regulations. I agree with the noble Lord, Lord Rooker: my noble friend has acquired a rhetorical flourish or two today.

We can see the powers that we debated on the Medicines and Medical Devices Act coming into use already. The powers in Section 15 are being used for this purpose, but my noble friend will of course recall that Section 16 related to the criteria, including the effect that any regulations made would have on the life sciences industry in the UK. The Explanatory Memorandum argues persuasively that this validation process will increase the resilience of the supply chain and may even encourage domestic suppliers. It also refers to the discount available to SMEs, which is welcome. But paragraph 12.8 of the Explanatory Memorandum says that an impact assessment would be published in time for the parliamentary debate. I could not find one yesterday or today. Will my noble friend say where it is and whether it confirms that it is the Government’s clear view that the life sciences industry and SME interests are fully protected?

There is a clear case for validation of these tests, given the reported failure rates of tests submitted for public procurement, to which my noble friend referred. We need to use lateral flow tests to support the return to school in the autumn, to enable employers to bring their staff back to their workplaces, and to counter outbreaks—in particular with large-scale surge testing—when we have achieved a lower prevalence again, which I hope will be in the late summer.

Studies including the Cochrane review, published in April, suggest that lateral flow tests will reliably confirm that someone without Covid is negative; in that sense, they have very high specificity. Where their sensitivity is concerned, they will confirm infection in someone with symptoms in an average of 72% of cases, but will on average identify the infection in asymptomatic cases only 58% of the time. Those results will vary according to the location and experience of the tester—where it is done and by whom. We need these tests to work at home and not just in the hands of healthcare professionals.

I support the regulations but I have three issues to raise. First, the tests procured by the Government will not be subject to validation because that would essentially be duplicatory, as the test approval is based on that same procurement process. But that procurement process has been used by the Government principally for the procurement of the Innova tests, which, as the noble Lord, Lord Rooker, made clear, are essentially manufactured by Xiamen Biotime Biotechnology in China. The Government, of course, had an intermediary company—Disruptive Nanotechnology, in Northampton—which, as far as I can see, was effectively a non-trading company at the end of December 2019. It is Innova Medical Group that is essentially the intermediary.

Innova is a Californian company. It is reported that it has sold 380 million tests to the Government. But on 10 June, the Food and Drug Administration issued a safety communication that the Innova rapid antigen tests should be withdrawn. Indeed, its communication suggested that the people who had them should simply throw them away. The question I come to is this: if we are confident in the Innova tests, what has been the nature of the discussions we have had with the Food and Drug Administration? My understanding is that, essentially, the Food and Drug Administration took the view that Innova was advertising the tests for use with asymptomatic people, but that they were authorised for use with those who have symptoms and that their sensitivity is greater for those with symptoms. Is that why the FDA issued its class I recall on these tests? That being the case, why did my noble friend say when he introduced the regulations that it is really important that we have tests that work for those who are asymptomatic? These tests are not sufficiently specific for those who are asymptomatic.

I know that it is a legal case, so my noble friend might hide behind his inability to speak about it, but why has Mologic, a Bedford company that has a track record, found it necessary to sue the Government in relation to their validation processes for the public procurement? What does that tell us about the validation they propose to use for this purpose?

I have two very quick other points. To put at rest the mind of the noble Lord, Lord Rooker, could my noble friend update us on the plans announced last month for Innova and Sharp packaging to build a factory in Caerphilly to produce up to a million tests a day, starting in July—this month? It is absolutely right that we should have leading medical technology companies in this country and manufacturing supply alongside them.

Thirdly, to further endorse what the noble Lord, Lord Rooker, said, could my noble friend explain what the Government’s intention is on charging for tests, particularly for employers, who will want to institute testing regimes to bring their staff back into their premises and to protect the public and their customers while doing so? They have had 18 months, in many cases, during which they have lost revenues. Should we really expect them to meet this further cost at this stage? Their taxes will sustain us in the future, but should we not now support them to get back to work? I would be grateful for my noble friend’s response.

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

The noble Baroness, Lady Brinton, has withdrawn, so I call the noble Lord, Lord Scriven, in her place.

National Security and Investment Bill

Debate between Baroness Healy of Primrose Hill and Lord Lansley

Committee stage
Tuesday 9th March 2021 Grand Committee

[Lord Lansley (Con)]

My Lords, when we discussed the second group, I said that when we are looking at the national security risk, the purposes of the Bill are to define the relevant entities and assets; the extent of control, which is significant for these purposes; and the nature of the acquirer of those entities and assets. I think the third is proving among the most difficult. This group seeks to define that person by reference to their nationality. This is a substantial change to the nature of the legislation, since the purpose of the legislation is to address national security risks; it is not to screen foreign investment in the United Kingdom. The analogies with other regimes—for example, with the European Union’s regulations—do not stretch far because they are concerned with foreign investment.

This group has strayed considerably beyond areas of national security and into the area of what is termed “open strategic autonomy”. I am not sure how open it will prove to be, but it is potentially protectionist by nature. It strikes me that we should really aim to focus on national security, which is the purpose of the Bill, and in the Bill’s broader economic aspects, we should continue to adhere to the principle of non-discrimination. If we include UK domestic actors in the potential definitions of acquirers who raise national security issues, we will be non-discriminatory in our effects, and it is important that we should aim at that. In practice, where national security is concerned, we know that not all foreigners are hostile, and not all those who are hostile are foreigners. So, I am afraid I am not persuaded.



There is also an issue here about authorised countries, which is linked to this but could be separated, although it is not for these purposes at the moment. The Committee on Foreign Investment in the United States has since last year, I think, had excepted states. Interestingly, they are Canada, Australia and the United Kingdom. The list does not include New Zealand for reasons no doubt well known to the United States Administration but not to me, so I am not entirely sure why my noble friend included New Zealand. The criteria appear to be related to the intelligence-sharing arrangements and the extent of defence integration between those countries’ industries and the United States.

Even where the United States’ excepted states are concerned, this is only temporary. There has to be a determination in the early part of next year of whether we have sufficient investment screening arrangements to give the United States assurance to maintain our excepted state position, which I think the Bill will allow us to do. That will be useful to United Kingdom investors into what are known as TID businesses in the United States—those dealing with sensitive technologies, infrastructure and data.

I say to my noble friend that I am not persuaded by this group of amendments, nor yet by the authorised country issue. I suspect the latter issue is one that it might be useful to come back to and think about under what circumstances we differentiate between people from countries that have comparable investment screening regimes in practice.

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

The noble Lord, Lord Bilimoria, has withdrawn so I call the next speaker, the noble Lord, Lord Leigh of Hurley.