Propel Legal Briefing - Digital identification – a look at how things might work by Luke Elford

First appearing for Propel Hospitality in their Legal Briefing on 14th February 2024.

Cards on the table, never in my life have I had to produce ID when visiting a licensed premises or buying alcohol. Not once. I’ve no idea why. Maybe I just look really old, really trustworthy(?) or like I’d be no trouble whatsoever. It could be attributed to the specific venues I frequented, the era I grew up in, or perhaps it’s just sheer luck.

I expect that my experience will differ quite a bit from the typical encounters that people have today when visiting a store, pub, or nightclub. Most people will, at some point in their lives, need to have shown ID to prove they are of legal drinking age or to gain entrance to a particular venue. The ID that they will have produced will have always been something tangible – a passport, a driving licence or a proof of age card. 

The need for ID to be in a physical form is because of one of the mandatory conditions associated with premises licences permitting the sale or supply of alcohol. For clarity, I’ve outlined it below:

The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce on request, before being served alcohol, identification bearing their photograph, date of birth and either—

(a) a holographic mark, or

(b) an ultraviolet feature

It is those seven words, “a holographic mark, or an ultraviolet feature”, together with a lack of legislative time or will that have prevented digital ID from being a valid option thus far.

The Department for Science, Innovation and Technology (DSIT) has previously said it is “working to help people securely prove things about themselves, such as who they are or what their age is, without having to repeatedly present physical documents”. Still, it is important to note that DSIT is very clear that the government is not looking to make digital identities mandatory, nor that this is a step towards ID cards.

In an effort to stay relevant and not get left behind in the conversation, the Home Office launched a consultation on 24 January 2024 to explore the potential inclusion of digital IDs in age verification processes for alcohol sales. The consultation also delves into the question of whether the government should amend existing legislation to explicitly state that, in cases where alcohol sales do not occur face-to-face such as online, age verification should happen both at the point of delivery and the point of sale, as currently, it’s only required at the latter.

There are currently a few proposed options of how digital ID might be brought in as a viable option for the British public. I have laid out a couple of scenarios that we might see come into play:

Option one

Nothing: only traditional identity documents that contain a holographic image or ultraviolet feature are acceptable for age verification for alcohol sales.

Option two

Alongside traditional identity documents, also allow digital identities to be used for age verification for alcohol sales.

Option three

Alongside traditional identity documents, also allow age estimation and other technology to be used for age verification for alcohol sales.

Given the current trajectory, it is quite unlikely that the government will opt for option one, so let’s assume we proceed with option two. Option three, especially in light of the growing influence of artificial intelligence and deepfake technology, could potentially warrant a dedicated discussion that could be a whole article in its own right.

Now, let’s explore how the acceptance of digital ID might unfold. First, it will require an amendment to age verification policies throughout England and Wales to account for the fact that digital ID is now permissible. Relatively straightforward, but you would be shocked at how many venues do not have an age verification policy to begin with. The Section 182 Guidance will no doubt require an update to incorporate the permissibility of digital ID and address any existing gaps.

Secondly, staff, including those with security industry authority (SIA) certification, must undergo training to proficiently handle and review digital ID. A crucial question arises: Will the device containing the ID be handed over to the person inspecting it, or will it be retained by the person showing the ID? If my experiences with EasyJet and others in respect of e-tickets are anything to go by, it’ll be a mixed bag – sometimes you will hold on to it yourself, sometimes they will check it manually. What happens if a staff member or SIA drops and shatters someone’s shiny new iPhone while checking a person’s ID? Potential mishaps like this are a valid concern and maybe proper procedure should be put in place.

A concern I’d like to flag is the current conditions on premises licences, particularly in relation to age verification. To combat venues prematurely accepting digital ID before adequate changes have been put into place, I’ve seen conditions on licences explicitly prohibiting the use of digital ID and pictures of ID. Those will likely all need to be changed unless the revised legislation provides for a standardised “digital ID” condition.

ID scanners will need to be upgraded or replaced so that they are able to accept digital ID, although I trust that major providers are already making substantial progress in this regard. This made me think about the other uses a venue might have for identification other than just age verification. Could the shift to digital ID potentially grant entry to venues for individuals who were previously banned? Clearly, this presents many dangers and issues. Could there be a way to transfer information about restricted patrons to these new systems to avoid allowing in any unwanted guests?

As we peer into the future of ID verification for alcohol sales, the possibilities are both exciting and complex. Whether we stick to the familiar territory of traditional IDs or embrace the digital frontier, it is clear that there will be some level of change on the horizon. The prospect of seamlessly integrating digital ID into our lives sparks curiosity and opens doors to convenience, but it also brings with it a set of challenges and questions for the industry. While the move to digital ID can be seen to be positive, the proof, as always, will be in the pudding.

Luke Elford is a partner at John Gaunt & Partners