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16 Jud. Rev. 1 (2011)

handle is hein.journals/judire16 and id is 1 raw text is: [2011] JR

The Public Sector Equality Duty*
The Hon Mr Justice Sales
1. The public sector equality duty is set out in Ch. 1 of Pt 11 of the Equality Act 2010. Part
11 of that Act is entitled Advancement of Equality. Chapter 1 is headed Public Sector
Equality Duty and contains s. 149, which is the operative provision which sets out the
public sector equality duty. It is proposed that the duty will be brought into force with
effect from 1 April 2011. It is not to be confused with the public sector duty regarding
socio-economic inequalities which is contained in s. 1 of the Act, which the current
Government has said will not be brought into force at all.
2. The public sector equality duty in s. 149 will replace and expand upon certain similar
duties imposed upon public authorities which already exist. It will require public
authorities to have due regard, in the exercise of their functions, to the need to eliminate
discrimination, harassment, victimisation and any other conduct prohibited under the
2010 Act, to the need to advance equality of opportunity between persons who share a
relevant protected characteristic and persons who do not share it and to the need to
foster good relations between such groups. The relevant protected characteristics are
listed as: age, disability, gender reassignment, pregnancy and maternity, race, religion
or belief, sex and sexual orientation.
3. This is a significantly wider duty than exists at present. Public authorities have been
under a general duty to promote race equality since 2 April 2001. The disability equal-
ity duty was introduced on 4 December 2006 and the sex equality duty was introduced
on 2 April 2007. It was the latter duty which was the foundation for the recent attempt
by the Fawcett Society to challenge the lawfulness of the emergency budget. There are
currently no duties in relation to age, gender reassignment, pregnancy and maternity,
religion or belief, or sexual orientation.
4. The new public sector equality duty will apply to the public authorities set out in Sched.
19 to the Act when they exercise any of their functions: s. 149(1) (unless special provi-
sion is made in Sched. 19 to specify only some of their functions as functions to which
the duty will apply: see s. 150). In addition, the duty will apply to any person who is not
a public authority but who exercises public functions, in the exercise of those functions:
s. 149(2). It is important at the outset to emphasise the width of the activities which may
therefore be affected by the duty. As to what counts as a public function exercised by
a person who is not a public authority, one may expect the courts to follow a line on this
which is the same as that being worked out in relation to s. 6(3)(b) of the Human Rights
Act, where an expansive definition of a public authority is given in the context of that
Act to include any person certain of whose functions are functions of a public nature.
Section 150(5) of the 2010 Act provides: A public function is a function that is a func-
tion of a public nature for the purposes of the Human Rights Act 1998. It is not an
entirely straightforward line to draw. There is a power to add to the list of public author-
ities in Sched. 19, and a consultation is currently underway on proposals for addition to
the list.

* This is the text of a talk given to ELBA and ALBA on 13 December 2010.

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