Joint Committee On Statutory Intruments Sixth Report


Memorandum from the Department of Trade and Industry


1. The Committee raised a point regarding regulation 8 of the above instrument, which concerns the entitlement of mariners to statutory paternity pay and statutory adoption pay. The regulation incorporates by reference certain definitions in the Social Security Contributions Regulations 2001 (SI 2001/1004, "the Contributions Regulations"). The Committee asked why the definitions were applied in that way rather than set out in regulation 8.

2. The decision to incorporate definitions by reference was based on a number of considerations. One was the length of the definitions in question. The definitions are reproduced in an annex to this memorandum, and the Committee will see that - taken together - their length exceeds that of the interpretation provisions in regulation 1 of the instrument. Another consideration was the fact that regulation 8 is only relevant to one of the groups of employees to whom the instrument applies.

3. Employers paying paternity and adoption pay will also be making national insurance contributions (they are entitled to recoup the payments made by making deductions from those contributions). It was considered reasonable to assume that they - in so far as they make use of legislation rather than guidance in meeting their obligations in relation to national insurance - and those advising employees will possess or have ready access to the Contributions Regulations. Those Regulations govern all aspects of the contributions regime.

4. Another consideration is that, apart from the references to other legislation, regulation 8 is in the same terms as regulation 7 of the Statutory Maternity Pay (Persons Abroad and Mariners) Regulations 1987 (SI 1987/418). Regulation 7 incorporates the same definitions in the same way. Had regulation 8 of the new Regulations set out the definitions, it is possible that a person consulting both sets of Regulations might be misled into thinking that they had different effects.

5. Finally, incorporation by references has the advantage that, if the provision referred to is revoked and replaced by a new provision in a modified form, section 17(2) of the Interpretation Act makes it unnecessary to amend the referring provision.

13th December 2002


Definitions in Case C of Part 9 of the Social Security Contributions Regulations 2001

"foreign-going ship" means any ship or vessel which is not a home-trade ship;

"home-trade ship" includes

(a) every ship or vessel employed in trading or going within the following limits, that is to say, the United Kingdom (including for this purpose the Republic of Ireland), the Channel Islands, the Isle of Man, and the continent of Europe between the river Elbe and Brest inclusive;

(b) every fishing vessel not proceeding beyond the following limits-

on the South, Latitude 48º 30´ N.;

on the West, Longitude 12º W.;

on the North, Latitude 61º N.;

"mariner" means a person who is or has been in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—

(a) the employment in that other capacity is for the purposes of that ship or vessel, or her crew or any passengers or cargo or mails carried by the ship or vessel and

(b) the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on her voyage,

but does not include a person in so far as his employment is as a serving member of the forces.

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