Commentary on Sections Part 4: Public Functions Section 86: Codes of practice
293.Section 86 inserts a new section 76E into the SDA
294.New Section 76E gives the Commission the power to draw up and issue a code of practice about performance of both the general duty in section 84 and the specific duties to be imposed by section 85. There is also a requirement for the Secretary of State to consult Scottish Ministers and the National Assembly for Wales before approving a draft code or commencing a code. Recognising that codes of practice on the gender duty will go beyond the employment field, provision is made in this section for a code of practice on the gender duty to be admissible in evidence in relevant proceedings before all courts and tribunals.
295.In respect of sections 84 and 85 (which introduce new sections 76A to 76D into the SDA), before the CEHR becomes operational, any requirement for the Secretary of State to consult the Commission will mean a requirement to consult the EOC. The EOC will also have responsibility for enforcing the general duty and the specific duties to be imposed by secondary legislation. During this interim period, the EOC will additionally be responsible for preparing and issuing codes of practice under new section 76E in relation to the general duty and the specific duties. The procedural requirements applying to codes of practice prepared under section 56A of the SDA are to apply with the adjustment made by section 86 to the issuing of codes whilst the EOC is responsible for issuing the codes of practice on the gender duty.