Introduction
The United Kingdom government is proceeding with plans to integrate digital identity systems into everyday life, with one of the most significant applications being the verification of an individual's right to work. Under the UK digital identity and attributes trust framework, the government aims to create a system where certified private-sector providers can digitally verify a person's identity and eligibility for employment (GOV.UK, 2022). While this system is presented as optional, with traditional manual checks remaining available, its link to a fundamental requirement for social and economic participation—employment—raises an important constitutional question. This essay will analyse whether a technically optional identity system becomes mandatory in practice when it acts as a gatekeeper to the labour market.
This essay will argue that by linking digital ID to right to work checks, the government risks creating a system of ‘practical compulsion’. This occurs when the convenience, security, and efficiency benefits for employers incentivise them to favour or even demand the use of the digital system, effectively disadvantaging or excluding those who cannot or will not use it. This de facto mandatory nature raises constitutional concerns regarding the rule of law, individual privacy under the Human Rights Act 1998, and data protection principles. It risks establishing a national identity system by stealth, a concept that has historically faced significant political and public opposition in the UK, without the direct legislative debate that such a significant measure would ordinarily require.
The Legal Requirement for Right to Work Checks
The legal duty for employers in the UK to prevent illegal working is established by the Immigration, Asylum and Nationality Act 2006. Section 15 of the Act makes it an offence for an employer to employ a person aged 16 or over who is subject to immigration control if that person has not been granted leave to enter or remain in the UK, or if their leave is invalid, has ceased to have effect, or is subject to a condition preventing them from accepting the employment.
To avoid liability, employers must establish a statutory excuse. This is typically done by conducting prescribed document checks before the employment begins. The details of these checks are outlined in Home Office guidance, which has evolved over time. Traditionally, this involved the employer manually checking an individual's original, physical documents, such as a passport or biometric residence permit, in the presence of the holder. During the COVID-19 pandemic, temporary adjustments allowed these checks to be done remotely via video call.
Since April 2022, employers have also been able to use certified Identity Service Providers (IDSPs) to conduct digital right to work checks for British and Irish citizens who hold a valid passport (Home Office, 2024). For other individuals, such as those with biometric residence permits, the Home Office operates its own online checking service. An employer who fails to conduct the appropriate checks can face significant penalties. These include a civil penalty of up to £60,000 per illegal worker (Immigration Act 2014, s. 34) and, in more serious cases, criminal prosecution leading to a potential prison sentence and an unlimited fine under section 21 of the 2006 Act. These severe penalties create a powerful incentive for employers to adopt the most reliable and foolproof method of verification available to them, which sets the stage for the problem of practical compulsion.
Digital Identity and the 'Optional' System
The UK government's policy is to create a market of trusted digital identity solutions, rather than a single, state-mandated ID card or system. The ‘UK digital identity and attributes trust framework’ sets out the rules and standards that organisations must follow to become certified providers of digital identity services (GOV.UK, 2022). The stated intention is to provide individuals with a secure and convenient way to prove their identity online and in person.
In the context of right to work checks, the system allows a prospective employee to use a certified IDSP to verify their identity and associated attributes (such as their right to work status) and then share this verification with an employer. The government has consistently stressed the voluntary nature of this scheme. For example, official guidance states that employers "must not treat those who do not wish to or are unable to use a digital check less favourably" and must continue to offer manual checks as an alternative (Home Office, 2024).
However, the practical realities of the employment market may undermine this principle of choice. For employers, digital checks offer significant advantages. They can be faster than arranging in-person meetings, reduce administrative burdens, and potentially offer greater security against fraudulent documents. IDSPs, as commercial entities, will market their services to employers on the basis of this efficiency and security. Consequently, employers may develop a strong preference for candidates who are willing and able to use the digital system. This creates a powerful pressure on job applicants to conform, regardless of the official "optional" status of the system.
The Constitutional Problem of Practical Compulsion
The core of the constitutional problem lies in the concept of ‘practical compulsion’. This describes a situation where, although there is no legal obligation to do something, the negative consequences of not doing it are so significant that the choice is not genuinely free. Linking an identity system to a necessity like employment is a classic example. If a job applicant finds that employers consistently prefer candidates who use a digital ID, or if the process for non-users becomes slower and more difficult, their 'choice' to opt out of the digital system is largely theoretical.
This situation can be compared to the historical debate surrounding national identity cards in the UK. The Identity Cards Act 2006, which introduced a compulsory biometric ID card, was met with fierce opposition from a coalition of civil liberties groups, politicians, and the public. Critics argued it represented an unacceptable expansion of state surveillance and an infringement of personal liberty (House of Commons Library, 2010). The Act was repealed by the coalition government in 2010, which described the scheme as "un-British" and an erosion of freedoms (Identity Documents Act 2010).
The current digital ID proposals, while framed differently, could lead to a similar outcome. By creating a system that becomes essential for accessing employment, the government may be establishing a de facto national identity database "by the back door" (Open Rights Group, 2021). This approach avoids the direct political confrontation that would accompany a Bill for a compulsory ID card, but it achieves a similar functional result. This raises a rule of law concern: major changes to the relationship between the citizen and the state should be enacted through clear, specific, and democratically scrutinised primary legislation, not through the indirect pressures of market forces encouraged by government policy.
Human Rights and Data Protection Concerns
The practical compulsion to use a digital ID for employment also has significant implications for rights protected under the Human Rights Act 1998 and data protection law.
#### Article 8: The Right to Private and Family Life
Article 8 of the European Convention on Human Rights (ECHR), incorporated into UK law by the Human Rights Act 1998, protects the right to a private life. This includes the protection of personal data. The creation and use of a digital identity, which involves collecting, storing, and sharing sensitive personal information, clearly constitutes an interference with this right.
For such an interference to be lawful, it must be "in accordance with the law" and "necessary in a democratic society" for one of the legitimate aims listed in Article 8(2), such as "the economic well-being of the country" or "the prevention of disorder or crime". The government would argue that preventing illegal working serves the economic well-being of the country. However, the requirement of necessity involves a proportionality test: the interference with privacy must be proportionate to the aim being pursued.
If the digital ID system is truly voluntary, the interference is based on individual consent, making it easier to justify. But if it is practically compulsory, the state is effectively coercing individuals into surrendering their data to private companies (the IDSPs) to access work. This raises the question of whether a less intrusive means could achieve the same aim. The existence of the manual checking system suggests that less intrusive means are available. If this alternative route becomes practically unviable, the proportionality of compelling individuals into a digital data-sharing ecosystem becomes much harder to defend (Big Brother Watch, 2022).
#### Article 14: Prohibition of Discrimination
Article 14 of the ECHR prohibits discrimination in the enjoyment of Convention rights. There is a clear risk that a practically compulsory digital ID system would be discriminatory. Groups that are more likely to be digitally excluded, such as the elderly, people with disabilities, those on low incomes who cannot afford smartphones, or those with limited digital literacy, would be placed at a significant disadvantage in the job market (Mennell, 2021). If they are unable to use the digital system that employers prefer, their ability to secure employment, and thus enjoy the benefits of a private life that employment facilitates, is hindered. This differential treatment based on status (e.g., age or disability) would require objective and reasonable justification from the state, which may be difficult to provide if a viable non-digital alternative is not maintained.
#### Data Protection
The UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 require that the processing of personal data be lawful, fair, and transparent. A key lawful basis for processing is the data subject's consent. However, for consent to be valid, it must be freely given, specific, informed, and unambiguous. If an individual feels they have no real choice but to "consent" to using a digital ID to get a job, the validity of that consent is questionable. The imbalance of power between a job applicant and a prospective employer means that the "choice" to hand over data to an IDSP is not a free one. This undermines the fairness principle at the heart of data protection law.
Conclusion
In conclusion, while the government presents its digital ID framework for right to work checks as a voluntary and progressive step, the analysis of its practical application reveals a significant constitutional tension. The strong incentives for employers to adopt digital checks, driven by efficiency and the severe penalties for non-compliance with immigration law, are likely to create a situation of practical compulsion for job seekers. This effectively transforms an optional system into a de facto mandatory one for anyone wishing to participate in the labour market.
This outcome is constitutionally problematic. It risks creating a national identification system without the explicit parliamentary approval and public debate that such a fundamental shift in the citizen-state relationship demands, potentially undermining the rule of law. Furthermore, the coercion of individuals into a digital data-sharing an ecosystem raises serious questions about the proportionality of the interference with Article 8 privacy rights and risks discriminating against digitally excluded groups, contrary to Article 14. The supposed consent given by individuals in this context appears weak when viewed through the lens of data protection principles. Although the government insists that manual checks will remain an option, careful and robust oversight will be needed to ensure this alternative does not become a second-class route that penalises those who choose, or are forced, to use it. Without such safeguards, the digital ID system risks becoming mandatory in all but name, fulfilling the predictions of its critics and raising profound questions about privacy and state power in the digital age.
References
Big Brother Watch. (2022) The Digital Dystopia: The Dangers of Central Bank Digital Currencies and Digital ID. Big Brother Watch.
GOV.UK. (2022) UK digital identity and attributes trust framework. [Online] Available at: https://www.gov.uk/government/publications/uk-digital-identity-and-attributes-trust-framework-beta-version (Accessed: 15 May 2024).
Home Office. (2024) Right to Work Checks: An employer's guide. [Online] Available at: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide (Accessed: 15 May 2024).
House of Commons Library. (2010) The Repeal of the Identity Cards Act 2006. Research Paper 10/44.
Human Rights Act 1998.
Identity Documents Act 2010.
Immigration Act 2014.
Immigration, Asylum and Nationality Act 2006.
Mennell, S. (2021) The future of digital identity in the UK. The Constitution Society. [Online] Available at: https://consoc.org.uk/publications/the-future-of-digital-identity-in-the-uk/ (Accessed: 15 May 2024).
Open Rights Group. (2021) ORG's response to the digital identity and attributes consultation. [Online] Available at: https://www.openrightsgroup.org/publications/orgs-response-to-the-digital-identity-and-attributes-consultation/ (Accessed: 15 May 2024).
UK General Data Protection Regulation (UK GDPR).
