Home Office facing judicial review challenge over decision to require controlled drugs licence to carry out festival drugs testing

A Home Office policy requiring charities to obtain a controlled drugs licence in order to conduct safety tests on drugs at music festivals has "put lives at risk", a pre-action protocol letter challenging the decision has argued.

The letter – sent by law firm JMW Solicitors on behalf of Sacha Lord, a festival promoter and Greater Manchester's Night Time Economy Adviser, and the Night Time Industries Association (NTIA) – argued that the timing of the decision to require drug testing charity The Loop to obtain a licence was procedurally unfair, among other claims.

The practice of on-site drugs testing at music festivals in the UK dates back to at least 2014, according to the letter. It has been provided with the agreement of the local council and the police and is subject to a Memorandum of Understanding between the local police force, the local council, the festival organiser and the organisation which provides the drug testing.

The testing sees festival-goers hand over small amounts of a drug substance, which is then tested in an on-site laboratory.

If the tested substance reveals that it poses a serious threat to health, a notification can be made, alerting festival goers and organisers of the dangers of consuming that substance.

This testing has "on countless occasions, identified highly dangerous substances in circulation at festivals and undoubtedly has saved lives", the letter stated.

The dispute arose when the Home Office told The Loop – a leading provider of on-site testing – that it required a Home Office Controlled Drugs Licence to perform its testing early last month (8 June).

The claimants’ letter argued that this signalled a significant departure in how the Home Office considered on-site testing, and came just 48 hours before the Park Life festival, which it described as the "starting pistol" for the UK's summer festival season.

The Home Office says its position has not changed for 50 years.

"The rationale for the Home Office requiring a named premises for a Controlled Drugs Licence is, no doubt, because for most organisations with such licences they may store, produce and supply controlled drugs on site, e.g. for pharmaceutical purposes," the letter said.

It noted that the requirement is a Home Office policy decision that seeks to avoid the mischief of stores of controlled drugs not being securely locked away. But such a requirement in the case of on-site drugs testing is "pointless", as the festival laboratories typically destroy the small quantities of drugs they test, the letter claimed.

It also noted that the three-month license application process meant that even if an organisation obtained a licence, it could not cover the 2023 summer festival season. 

The claimants outlined the following reasons why the Home Office decision was flawed:

1. It contravened a legitimate expectation, as expressed in memoranda of understanding, in Government documents and Government statements in the House of Commons, on the part of festival organisers and the organisations providing the drug testing that it did not require a licence to lawfully conduct the life-saving drug testing. "Further that legitimate expectation has been contradicted with next to no notice before the series were due to be provided."
2. It was procedurally unfair in that the communication of the decision at the very beginning of the festival season, "whether by design or not, has the effect of making it impossible to obtain any licence to cover this life-saving work in time to be effective".
3. It failed to take into account relevant considerations. "There has been no consultation before this change of policy was announced with any interested parties, e.g. police forces, public health providers, festival organisations, drugs testing providers etc."
4. The clear risk of serious harm, including death, to festival goers caused by the Home Office's decision to make on-site drugs testing practically impossible, was irrational. Weighed against the public health benefits of this on-site testing, the Home Office's insistence on a licence and on fixed premises at which the drugs testing takes place was irrational. It was noted that the Home Office appeared to have performed its own rapid, on-site testing in at least 2013 - it was not known if that work was covered by a Controlled Drugs Licence.

The letter said that the Home Office should reach an agreement that on-site drugs testing by organisations continues by agreeing on a memorandum of understanding.

“Should the Home Office wish to pursue its current stated position that on-site drugs testing requires a Controlled Drugs Licence and a fixed premises then it should undertake a consultation exercise so as to reach a rational decision taking into account relevant considerations and allowing these organisations sufficient time to comply with the Government’s decision,” it added.

A Home Office Spokesperson said: “Our position hasn’t changed for 50 years. Festivals aiming to test drugs off their site this summer must work with the police and a Home Office licensed drug testing provider.

"We continue to keep an open dialogue with any potential applicants.” 

Adam Carey