Commentary on Sections Part 4: Public Functions Section 84: General duty to promote equality, &c.
282.Section 84 amends the SDA by inserting into that Act new section 76A. The effect of this provision is to impose on public authorities a duty to promote equality of opportunity that is similar to the duty imposed by section 71 of the RRA (as substituted by section 2 of the Race Relations (Amendment) Act 2000 (RRAA)) and the duty imposed by section 3 of the Disability Discrimination Act 2005 which inserts new section 49A into the DDA.
283.Newsubsection 76A(1) imposes a general duty on public authorities when carrying out their public functions, either as employers or service providers, to have due regard to the need to eliminate unlawful discrimination and harassment, and to promote equality of opportunity between men and women. This general duty will be enforceable through judicial review, rather than creating a cause of action for individuals in private law.
284.Newsubsection 76A(2) extends the definition of a public authority to include any person to the extent that he has functions of a public nature. This would include, for example, a private security firm contracted to provide a public function, for instance, to run a prison. It is only the public functions of private companies that are covered. Core public bodies like government departments, local authorities, the police and other governmental bodies are all public authorities. This subsection also confirms that the duty on public authorities to eliminate unlawful discrimination also covers contravention of the Equal Pay Act 1970.
285.Newsubsection 76A(3) excludes certain bodies from the definition of public authority, in particular the Houses of Parliament, Scottish Parliament, General Synod of the Church of England and the intelligence services. There is also a power for the Secretary of State, after consulting the Commission, to extend this list of bodies by order (subject to the negative resolution procedure).
286.Subsection 76A(4) exempts certain functions from the scope of the general duty: functions in connection with proceedings in the Houses of Parliament and the Scottish Parliament (though not the Scottish Parliamentary Corporate Body) and the exercise of judicial and related functions. There is also a power for the Secretary of State, after consulting the Commission, to extend this list of functions by order, also subject to the negative resolution procedure.
287.Newsubsection 76A(5) confirms that the general duty to promote equality of opportunity between men and women does not override any exception or limitation in law which permits sex discrimination.