HL Deb 01 July 1991 vol 530 cc866-82

6.40 p.m.

Lord Macaulay of Bragar

My Lords, I beg to move that this Bill be now read a second time.

I shall explain later something of the background and the purpose of the Bill. But, before doing so, I should like to pay tribute, first, to the honourable Member for Perth and Kinross in another place who introduced the measure and skilfully steered it through its various stages in that place, subject to proposed amendments which he countered with answers that were accepted by the Members who put forward the amendments. Secondly, I should like also to pay tribute to the work of the Scottish Law Commission, the work of which goes very much unrewarded in the legislative sense in some cases. The commission has no constituents and acts in the best interests of the community and the legal system of Scotland.

The main purpose of the Bill is to simplify the existing law of Scotland on the legal capacity and responsibility of young people. In introducing the Bill, I believe it is important, for the avoidance of doubts, that we should look to the Long Title. I say that because a great deal of misapprehension has been brought about by persons who have, perhaps not looked to see what the Bill says it will do. I make no apology for reading to your Lordships the Long Title: An Act to make provision in the law of Scotland as to the legal capacity of persons under the age of 18 years to enter into transactions, as to the setting aside and ratification by the court of transactions entered into by such persons and as to guardians of persons under the age of 16 years; to make provision in the law of Scotland relating to the time and date at which a person shall be taken to attain a particular age; and for connected purposes". That Long Title clearly indicates that the Bill relates to issues arising in the field of private law and transactions, with one or two other provisions. The provisions are concerned primarily with the capacity of young people to enter into contracts; for example, to make a will, to take part as litigants in court proceedings and to give valid consent to medical treatment.

The Bill also provides for an adjustment to the rules relating to the time and the date at which a person is regarded as having attained a particular age. That provision deals with the question of someone who was born at the end of February in a leap year. The noble and learned Lord, Lord Morton of Shuna, may have something to say about the way in which the work of the Scottish Law Commission is dealt with legislatively. I do not intend to enter into that field at this particular stage.

The Explanatory and Financial Memorandum to the Bill clearly indicates the purpose of the legislation. The measure has eight clauses. Clause 1, replaces the existing classification of young people under the age of 18 as pupils and minors with a new 2-tier system whereby young people under 16 years of age will generally"— I emphasise the word "generally"— have no legal capacity while those aged 16 and 17 will have full capacity, subject to certain safeguards.

Clause 2 sets out the exceptions to the general rule of incapacity of those under 16 and the legal consequences of it.

Clause 3 gives a right to a person under the age of 21 to apply to the court to have set aside prejudicial transactions entered into when 16 or 17 years old.

Clause 4 provides for judicial ratification of transactions proposed to be entered into by 16 or 17 year olds".

Clause 5, makes a number of consequential changes to the law of guardianship, abolishes"—

for the purposes of this Bill, and under reference to the Long Title— the concept of curatory of a minor and prohibits future appointments of factors loco tutoris".

Clause 6, relates to the time of attainment of a person's particular age in years".

Clause 7 deals with the acquisition of "an independent domicile"; Clause 8 makes "transitional" provisions; and then there are two schedules to the Bill.

I believe it is fair to say that over the years probably even lawyers, who like to say that they understand the law, have had difficulty with the concept of pupils and minors and tutors and curators. The existing rules governing the legal capacity of young people under the age of 18 are at present complex. They represent an historical and outmoded concept, dating back hundreds of years, and are based on a distinction between "pupils" and "minors". In the law of Scotland, pupils are girls under the age of 12 or boys under the age of 14. Minors are girls aged 12 to 18 years or boys aged 14 to 18 years.

Broadly speaking, pupils have no capacity to act for themselves and legal transactions must be entered into on their behalf by their tutor; that is, a "guardian" who will usually be the pupil's parent. The capacity of a minor—that is, a girl aged 12 to 18 years or a boy aged 14 to 18 years—varies according to whether he or she has a guardian who is known as a curator. If a minor has no curator (perhaps because both parents are dead, or the minor is married or living an independent life) transactions which he or she enters into will be valid and binding, except that any transaction which is substantially prejudicial to the minor may be set aside by a court before the young person reaches the age of 22 by another antiquated process known as reduction on grounds of minority and lesion. If, however, he or she does have a curator, most transactions require the curator's consent; but even that consent does not prevent a prejudicial contract being set aside by a court of law.

Apart from its innate complexity, the present law may be viewed as unsatisfactory in a number of respects. First, it discriminates between the sexes by having different ages of minority for boys and girls. I believe it was stated in another place that there was some biological reason therefor. However, I did not intend to go into that aspect of the matter because, on any view, it is discriminatory. It may be argued that the present law gives too much capacity to children of 12 to 15 years, yet does not sufficiently recognise that in these modern times young people in the 16 to 17-year age group can be economically and, indeed, sexually active. It also seems out of touch with reality to apply the same rules to children of 12 and to young people of 17 years of age.

Therefore, the intention behind the Bill is to replace what is an extremely complex system with a more rational and simplified two-tier system. Under the Bills' provisions, which I outlined earlier, young people under the age of 16 will in general have no legal capacity, subject to certain specific exceptions; for example, the right to make a will and the right to consent to medical treatment. Those young people of 16 and 17 years of age will have full legal capacity to enter into binding transactions but, as a protection against their relative immaturity, they will enjoy the limited protection of being able, before they reach the age of 21 years, to seek a court order to set aside transactions which, in terms of the legislation, are prejudicial to them.

The provisions in the Bill are based on recommendations made by the Scottish Law Commission in its report on the legal capacity and responsibility of minors and pupils. In preparing its report, the commission followed its customary procedure of issuing a consultative memorandum with provisional proposals in order to obtain views from interested parties. Additionally, the commission took into consideration the results of two opinion surveys: one covering adult opinion and the other covering the opinion of school pupils and school-leavers. If my recollection is accurate, the process involved interviewing about 4,000 people within the latter category. The commission's final recommendation that a two-tier system should be established is a departure, reflecting the weight of public opinion, from its earlier more radical preference for a clear-cut distinction between young people under the age of 16 who would have no legal capacity and those of 16 years and over who would have full capacity.

The modified recommendation recognises widespread concern (shared by many young people) that 16 and 17 year-olds need some protection from their relative immaturity, particularly as regards the possibility of their getting into debt by obtaining, for example, credit beyond their means. On the other hand, the possibility of introducing a single-tier system to apply at the age of 18 years was rejected by the commission as being overprotective. In its view, it would require an extensive array of exceptions to prove workable.

I did not wish to suggest to your Lordships for one moment that the views of consultees were unanimous; indeed, it would be surprising if they were. Inevitably, when dealing with such complex issues a diversity of opinion arose. However, the majority of consultees favoured a two-tier system, and I believe that such a system, which recognises the importance of 16 as an age of some significance in young people's lives—it is for example, the age at which they can marry, leave school or take up full-time employment—and that they require some protection from their comparative immaturity, represents a pragmatic solution to a difficult problem.

I re-emphasise that, apart from its general provisions concerning the time and date of attainment of age, the Bill is limited to questions of capacity in the private law field. It deliberately leaves untouched statutory age limits—for example, the age at which one can be tattooed, if one fancies that type of thing; the law relating to firearms, driving licences and so forth. It also leaves deliberately untouched the question of delictual or criminal responsibility.

I should like to emphasise, because it is an area which has caused a great deal of comment, that the Bill does not affect parental rights. A parent would still be entitled to exercise parental rights in relation to any child of his or hers, and could be appointed guardian to the child by will or by court order.

The range of interests consulted was extremely wide. [t included legal, medical, educational, financial and trade institutions, local authorities, the voluntary sector and youth organisations. The Bill's provisions reflect a broad general consensus of opinion, and I hope that it will receive the support of the House. I hope that, before anyone comments adversely about the report, they will have taken care to read the paper upon which the Bill is based, because it closely argues and balances the various views expressed before reaching the preferred option in each area.

The noble Lord, Lord Robertson of Oakridge, took the trouble to write to me. He has raised an important point in relation to Clause 2(4), which deals with consent to medical treatment. I am grateful to him for his courtesy in giving me notice of his intention to raise the point. I apologise for not replying to him due to lack of time.

Before I attempt to answer the noble Lord's point I should like to say a few words about Clause 2(4) generally. The clause provides that a person under the age of 16 years shall have capacity to consent on his or her own behalf to any surgical, medical, or dental procedure or treatment where, in the opinion of a qualified practitioner attending him, he or she is capable of understanding the nature and possible consequences of the procedure or treatment. Of the commission's provisional proposals for reform, those concerning consent to medical treatment generated much the largest response and the most controversy.

The noble Lord is especially interested in abortion policy, religious education and family life. It is understandable that he should express reservations about the clause. The commission considered a range of possibilities which it discusses in detail in paragraphs 3.61 to 3.83. The commission concluded that the best solution was that which appears in Clause 2(4). That formula is sufficiently flexible to cater for the requirements of a very young child and, say, those of a 15 year-old.

The noble Lord is particularly concerned that the clause does not clearly distinguish between parental rights and children's rights, and that the Bill would give the right to a girl under 16 years to consent to the provision of contraceptives or to the termination of a pregnancy without consulting her parents, provided she was capable of understanding the nature and consequences of the treatment.

It is of course true that the Bill leaves untouched the question of whether any treatment given with the effective consent of a child infringes on parental rights. The commission acknowledges (para 3.80) the relationship between a child's own capacity to act and that of his parents to act for him. However, that question is more consistent with the related topic of guardianship, upon which the commission consulted recently. Under the current law in Scotland, 16 has no particular legal significance in relation to consent to medical treatment. A minor already has capacity in Scotland to consent to his or her own medical treatment, at least where such treatment is accepted as therapeutic. It must also be borne in mind that a doctor's conduct is governed not by statute or the common law alone; it is governed by the General Medical Council's guidance on professional conduct and discipline. Following the case of Gillick, which was, of course, an English case, paragraph 4 of the General Medical Council's leaflet requires that: Where a child below the age of 16 requests treatment concerning a pregnancy or contraceptive advice the Doctor must particularly have in mind the need to avoid impairing parental responsibility or family stability."— This is the nub of the matter— The Doctor should seek to persuade the patient to involve the parents (or guardians or other persons in loco parentis) from the earliest stage of consultation".

The Department of Health issued guidance after the Gillick case. Recognising the importance of parental responsibility and family stability, it requires a doctor to try to persuade a patient under 16 years to involve his or her parents when contraceptive advice or treatment is sought. The guidance made clear, however, that, exceptionally and in specified circumstances, advice on treatment may be given without parental knowledge and advice. I understand that the Scottish Office Home and Health Department has it in mind to issue a guidance note concerning the treatment of young people in Scotland.

The provisions concerning young people's ability to consent on their own behalf are without prejudice to the existing law on parental rights. Of course, the fact that effective medical consent is given by the child does not require a doctor to proceed with any treatment. The question was raised as to whether the test should be that the treatment was in the child's best interests. That, as those of your Lordships who have read the commission's report will see, raised other problems. One doctor might say that it was in the child's best interests and another might say that it was not. That could lead to court actions and might put the doctor off treating the child in those circumstances in these modern times. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Macaulay of Bragar.)

6.58 p.m.

Lady Saltoun of Abernethy

My Lords, I speak on the Bill with great diffidence because I have never been a lawyer's clerkess let alone a lawyer and the Bill's promoters are distinguished lawyers. I should not be doing so were it not for the fact that my attention has been drawn to one or two aspects of the Bill which worry the Scottish Child Law Centre. Those worries seem to me to be well-founded. The noble Baroness, Lady Carnegy, who is unable to speak this evening owing to a previous engagement, shares those worries.

Since the present law seems to be working well, I wonder why it should be changed. The concept of pupillarity up to the age of 12 for girls and 14 for boys, followed by minority up to the age of 18, is eminently sensible and founded upon common sense. It recognises the desirability of introducing children to adult responsibilities gradually. I agree that it is discriminatory, but so was the good Lord when he made girls and boys different.

The Scottish Law Commission wants to make the law more comprehensible and to tidy it up. It seems to me to be comprehensible as it is and has been for hundreds of years. I was brought up with it, and so it is familiar to me. I suspect that tidying up really means bringing the law in Scotland as nearly as possible into line with the law in England. I can see no reason for doing that, except to make it easier for the English to understand. That is not a good reason for changing the law of Scotland. Finally, the fact that the Law Commission for Scotland wants to change it is not necessarily a recommendation.

I am not saying that the Bill has no good points. It extends to children of all ages the right to enter into small transactions, for example to make purchases in shops, which of course pupils do, possibly illegally —I am not quite sure about that—as soon as they are old enough to receive pocket money. The Bill standardises at the age of 12 a child's right to make a will or consent to adoption. It provides that at any age a child may consent to surgical, medical or dental treatment provided he is capable of understanding what is involved. I believe all those provisions are good provisions. However, there are areas where the Bill is unclear as regards what a child's rights will be, or where it erodes existing rights.

I wish to ask the noble Lord, Lord Macaulay of Bragar, and the noble and learned Lord the Lord Advocate a few questions. It seems to me that the Bill abolishes the status of minority. Is that the case and, if not, what will the implications of minority be? At present a minor can apply for legal aid in order to consult a solicitor. If this Bill is passed, will it still be possible for him to do so? Under the Bill a child can consent to medical, surgical or dental treatment, but could he refuse it?

It is possible in Scottish law to steal a pupil child. That crime is called plagium. Will the Bill have the effect of extending up to the age of 16 the application of the law of plagium? If it does, it will erode the right which a minor has at present to decide within reason with whom to reside without having to be adopted by that person.

At present a minor has freedom of religion, but what will be the position under this Bill? At present a minor has freedom of association, but what will be the position under the Bill? How will a minor's right of access to information be affected? Am I not correct that all guardianship will cease at the age of 16, leaving 16 to 18 year-olds bereft of the protection they now enjoy against entering into contracts contrary to their best interests? The answers to those questions will determine what amendments, if any, I table in Committee.

I wonder why we are in such a hurry over this matter. The Scottish Law Commission has produced a discussion paper on parental responsibilities and rights, guardianship and the administration of children's property. I believe the law regarding children in Scotland needs to be looked at very carefully for in some particulars the Children Act does not apply in Scotland, and recent events have pointed to the need for a review of some aspects of the situation. Would it not be better to discuss this Bill, to amend it and then to put it aside and incorporate the best of its recommendations with amendments in a government Bill which will deal with all the problems?

I remind your Lordships that in another place the Bill received only a formal Second Reading and a brief Committee stage in which a few amendments were moved, none of which were accepted or pressed. Many of the amendments were probing amendments. There was a formal Report stage and Third Reading. Therefore the Bill has received little real scrutiny so far. I rather suspect that that is because it is a Private Member's Bill concerning Scotland and therefore it has not been of much interest to the majority of Members in another place. However although it is a small Bill, it is an important one which would enact fairly far-reaching changes in the legal status of children. This is too important a matter to be the subject of a Private Member's Bill. I implore the noble Lord, Lord Macaulay, and the noble and learned Lord the Lord Advocate to consider these matters and to consider withdrawing the Bill.

7.4 p.m.

Lord Morton of Shuna

My Lords, I congratulate the noble Lord, Lord Macaulay of Bragar, on bringing forward this Bill. It is one of many produced in draft by the Scottish Law Commission, whose report on this subject was published in 1987. The commission produced its report after its usual careful research and after producing a consultation paper and consulting as widely as possible.

I wish to take the opportunity provided by the Bill to question the apparent inability of Parliament nowadays to take the work of the Scottish Law Commission and its English equivalent the necessary final step into legislation. In the great majority of situations the Law Commissions produce reports and recommendations as a result of having matters referred to them by the Government. Usually the subject matter is not an issue of party political moment and is a matter of bringing the private law or legal procedure up to date to take account of changes in the way we live and the way we earn our livings. The reports of the Law Commissions, both Scottish and English, are. as one would expect, invariably well researched and well thought out. They are generally welcomed, even by the government of the day. I wish to make it clear that I am not criticising this Government but the governments that have been in office since the Law Commissions were set up.

Having reported and having produced a draft Bill, all too often nothing then happens, except on a few occasions such as this one when someone introduces a Private Member's Bill in this House. It is said that no action is usually taken on these draft Bills because of lack of parliamentary time and the pressure on the Government to get their own legislation through. I emphasise again that I am not criticising this Government but rather all governments. I suspect that there is also an inherent Civil Service inertia in that if the Civil Service feels that the Government do not want to change something there is no incentive to bother with such a measure. Surely, it is a complete waste of time to have what is in effect two Royal Commissions sitting permanently, considering matters that are referred to them by governments and other bodies, only for the Government in the majority of cases to forget all about the results. It is also a waste of the time of judges, law societies, consumer bodies and others who respond to consultation papers and believe the measure they are considering is serious as the Government have referred the matter to them if nothing then happens.

Could not this House give some consideration to whether these draft Law Commission Bills from both Law Commissions should follow a different procedure? For the past couple of years I have been present in this House on fewer occasions than I would wish. However, in the short time I have been in the House I have noticed that there are times when this House does not appear to be fully occupied, especially at the beginning of a parliamentary Session. There are occasions when Bills that are non-contentious from a party political point of view could be seriously considered by this House line by line and then sent to another place. Surely it is not beyond the wit of this House and the Members of another place to find some procedure to deal properly with the useful work that the two Law Commissions carry out in order to bring into effect reforms of the law that are non-contentious in a party political sense. It is a great pity that so many Law Commission reports produced by the Law Commissions both north and south of the Border simply sit gathering dust on some ministerial shelf.

I have little to say on this Bill. I, and no doubt other noble Lords, have received the comments of the Scottish Child Law Centre. Until this country, or these countries—whichever one prefers—the United Kingdom, takes into account what I understand is now to be called the doctrine of subsidiarity, time in Parliament is restricted. It is not possible as a matter of practicality, however much one would welcome a general all-embracing children's Bill, for it to be the answer to the problem. It is necessary for Scottish legislation, however unfortunate this may be, to proceed step by step and little by little. I am not convinced that a total children's Bill is the answer. One would require to put into such a Bill what is already in or should be amended in the social work legislation, the education legislation and the family law legislation. It would cause as much confusion to take all the children provisions out of that legislation and put them into one Bill as to do it step by step as is suggested.

On the points that my noble friend Lady Saltoun raised, I suggest that nothing in the Bill would disqualify a minor from applying for legal aid. The question of theft of a child would not arise at all. One is either in the state of theft of a child because the child cannot make a decision of his or her own—that is the case of a child under five or six—or the charge is one of kidnapping. However, the noble and learned Lord the Lord Advocate knows this perfectly well and has taken steps before. He does not consider that somebody cannot be kidnapped merely because they are over 16. One could well see that the crime element in what would otherwise be plagium involving a very young child could be dealt with perfectly easily, whichever way the House takes the Bill.

There is a difficulty about Clause 2(4) in regard to medical treatment. The Law Society of Scotland has suggested that the Bill should be amended to include a reference to the child's best interests. I should be very sorry indeed to believe that any doctor could ever under his professional rules feel that he was recommending any operation or medical treatment for anyone if he did not consider that it was in the child's best interests. I suggest that that argument is unnecessary. On the whole, I commend the Bill to the House as another example of the useful work of the Scottish Law Commission.

7.13 p.m.

Lord Robertson of Oakridge

My Lords, I hesitate to speak on a Bill that is concerned with Scottish law when I am neither a lawyer nor a Scottish Peer. However, I served for 20 years in a Scottish regiment and that is my excuse for speaking. I am grateful to the noble Lord, Lord Macaulay, for answering the points on which I wrote to him. I apologise if I appear to ignore them; I have not had time to rewrite my speech accordingly, and I hope that I shall not make any unnecessary comments.

My reason for speaking is to ask for clarification of the effect of Clause 2(4), which gives a child of any age the capacity to consent to medical treatment provided that the doctor is satisfied that the child understands the nature and the possible consequences of the treatment or surgery. In particular, I feel that clarification is required of the relationship between a child's capacity to act for itself and the right of its parents to act for it. This vital question had apparently not been studied by the Scottish Law Commission before it issued the report which is the basis of the Bill. I understand that it has studied the question since then.

My understanding of the Bill is that it seeks not only to change the law on the various ages of capacity but also to clarify it. The Law Commission report certainly indicates that the law on the age of consent to medical treatment badly needs clarification. Paragraph 3.65 of the report of the Scottish Law Commission quotes some doctors as believing that the age of consent to medical treatment is 14; some believe it is 16; some 18. And the figure of 12 has been used in other connections.

Unfortunately, Clause 2(4) raises more questions than it answers. Taken literally—and we have to take Bills literally—it appears to allow doctors to carry out hazardous operations or non-essential treatment like cosmetic surgery on children of any age without the parents even being consulted. This reduction of parental rights is extraordinary, especially at a time when the Government have been rightly anxious to get parents to take more, not less responsibility for the upbringing of their children.

What worries me most is how the Bill will affect important ethical matters on which parents and children sometimes disagree, such as contraception and abortion. On the face of it, the Bill would allow a girl, however young, the right to consent to receiving contraception or to have an abortion without reference to her parents. It merely requires the doctor to satisfy himself that the child, is capable of understanding the nature and possible consequences of the procedure or treatment". How can a child possibly understand the nature of an abortion, let alone the possible consequences? They can be physical, psychological or spiritual. Furthermore, is it right to burden the medical profession with such a great responsibility?

Your Lordships' House will know of the recent case in England where Mr. Justice Hollis reached a decision that a 12 year-old girl should have an abortion, against the wishes of her mother. I do not agree with that decision, but I am glad that the important arguments involved were settled in a court of law rather than at the discretion of an individual doctor. I ask the noble Lord, Lord Macaulay, what the position in Scotland will be in relation to a case of this nature if the Bill is passed. Will a 12 year-old be able to consent to a termination of her pregnancy against her parent's wishes without the parents having any recourse to a court of law?

There appear to be conflicting views on how the Bill will affect parental rights. Paragraph 3.81 of the Scottish Law Commission's report states that the legal proposals do not, affect the right of a parent or guardian to consent to medical treatment on behalf of a child or to be consulted about proposed treatment". The Bill seems to be inconsistent with this and the discussion on this clause in the other place implied that parental rights could be overridden.

The sponsor of the Bill in the other place went even further when he indicated that if the doctor decided that the child needed treatment of any kind then it would not matter what his parents thought. That is a drastic statement and it would be interesting to know from the noble and learned Lord the Lord Advocate whether this view is in line with government policy.

My own view is that the parents' right to act in the interests of their child should be paramount. However, my view is not important. What is vital is that the law should be made clear on an important point of principle—too important and perhaps too controversial to be dealt with in a Bill such as this. I felt it was right that it should not pass through your Lordships' House unnoticed.

I should be most grateful therefore if the noble Lord could make a clear statement on what the impact of the new clause will be so that parents, children and the medical profession in Scotland will know where they stand in relation to each other.

7.20 p.m.

Lord Ashbourne

My Lords, I apologise to the House for intervening without putting down my name. I had a particularly disagreeable forenoon today and by the time I had extricated myself from a series of boring meetings the list had closed. I therefore telephoned the Lord Advocate's Office and told him of my intention to intervene. He was gracious enough not to rise to his feet too speedily, thus allowing me in, as it were. For that I am most grateful.

I share the hesitation of the noble Lord, Lord Robertson, in speaking in a debate on a Scottish Bill, particularly as I have not even had the benefit of serving in a Scottish regiment. However, I believe the matter is so significant that a brief intervention is called for. In spite of the opening remarks of the noble Lord, Lord Macaulay of Bragar, I too am concerned about the implication of Clause 2(4) of the Bill. Arrangements for consent to medical treatment, especially when they involve the treatment of children, are very important. It is essential that the law and procedures are clear. I do not think it is good enough to leave it to the judgment of doctors alone. Like the rest of us, a doctor can make a mistake and there will be the occasional bad apple in the barrel. Surely, the clause should at least make some mention of consulting parents. In this day and age when the Government are trying to promote the taking by parents of more responsibility for their children, it seems strange to me that the clause is silent on the matter.

It may be that the rights of parents are protected by some other piece of legislation. If so, should there not be some reference to it? The clause as drafted is too vague and open to misinterpretation. I urge the noble Lord, Lord Macaulay, to think again about this aspect of the Bill and either drop Clause 2(4) or amend it to spell out more clearly the role of parents.

7.23 p.m.

Lord Fraser of Carmyllie

My Lords, before the noble Lord, Lord Macaulay, responds to the many questions put to him it may be helpful if on behalf of the Government I indicate our stance on the Bill. Perhaps I may begin by thanking the noble Lord for his part in bringing this legislation before us. As he made clear, it is a useful measure which we hope will clarify and simplify the law on the legal capacity and responsibility of young people in Scotland. Like the noble Lord, Lord Macaulay, I should also like to congratulate my honourable and learned friend the Member of Parliament for Perth and Kinross upon his introduction and skilful handling of the Bill in another place.

As your Lordships will have appreciated, the Bill is based upon a report by the Scottish Law Commission. I believe I am right in saying that the order for publication of that report goes back to December 1987. Thus, it does not come fresh from the press and has been available for some time to be carefully considered by those concerned about this very important part of our law.

The report which has been prepared represents the first stage of a major project by the commission on the law on children. In due course there should be reports on the, related topics of custody and guardianship and, more generally, the scope of parental rights and duties, which are the matters that most obviously concern the noble Lord, Lord Robertson. Your Lordships will be reassured to know that the Government consulted various interests on the commission's proposals and found substantial support from those interests for the recommendations in the report.

In view of a number of the questions posed, it may be helpful if I indicate answers as best I can on behalf of the Government. First, perhaps I may take up the interesting set of observations made by the noble and learned Lord, Lord Morton. I understand what he is driving at but am bound to say that I think he will find on reflection that a number of the reports of the Scottish Law Commission, which he might rightly indicate carried no particular overtones of party political controversy, engendered a certain amount of heat when they came to this House. Perhaps I may take one short but recent example. During the passage of the Law Reform (Miscellaneous Provisions) Bill, the Government included a provision on divorce based on a proposal emanating from the Scottish Law Commission which at the time when it was first made apparently attracted no interest or controversy whatsoever. However, it was very clear not only in this House but in another place that once the proposals came before the legislature attitudes might change suddenly and dramatically.

Lord Morton of Shuna

My Lords, I believe that the heat generated by that particular amendment was mere tepidity compared with some of the other measures contested in that Bill. It was merely tepid on divorce compared with some of the other measures for which the noble and learned Lord was trying to argue.

Lord Fraser of Carmyllie

My Lords, the noble Lord must take his bath hotter than I do. I felt there was quite a lot of heat generated on the matter of divorce. I do not wish to re-run that debate but, after all, the Churches in Scotland suddenly appeared to be taking an interest and expressing concern about it. They had not done so hitherto.

However, I understand that the Scottish Law Commission may from time to time feel a sense of frustration, in that they have no very clear idea whether what they have suggested is acceptable to government. It is my intention to talk to the chairman of the commission this summer to give him some indication of those Bills which I and my right honourable friend the Secretary of State for Scotland think should be implemented if an appropriate time can be found. While I understand their frustration, I believe the law commissioners themselves appreciate that it is for this House and another place to determine, however well thought out their proposals may be, whether or not to accept the policy that lies behind the proposals they have put forward.

I am not sure I can answer all the questions which the noble Lady, Lady Saltoun, put to me. I believe the first question she asked was whether, if the Bill was enacted, the status of minority in Scots law would be abolished. The status of minority as such will not be abolished. The Scottish Law Commission in its report took the view that in relation to capacity to enter into legal transactions there was no longer any significance in the common law ages of puberty (12 for girls and 14 for boys), which derive from Roman law. Scots law has seen the pre-Reformation significance of the age of puberty hugely altered. Where once minority (the age of puberty) was the age at which girls and boys could, among other things, get married, now both marriage and the age at which legal sexual intercourse may take place is 16 years. This has been achieved by express statutory provision. The process is a continuing one. The freedom open to a minor on becoming forisfamiliated—that is, the freedom to act on his own outwith his father's curatory—is further curtailed by other age limits: for example the law now requires him to remain at school until he is 16.

The Bill is in effect another step in that process. An age limit of 16 will be superimposed upon minority, and the freedom of a minor under the age of 16 to enter into contracts and other transactions having legal effect will be limited to actions through his guardian, with certain important exceptions, but minority itself will not be abolished.

The noble Lady then asked in a related way what would be the implications for minority following the passing of the Bill. The implications for minority will be that minority itself will have no continuing significance in relation to the capacity of minors to enter into legal transactions. After the Bill is enacted minors over 16 will have complete freedom to enter into contracts subject to the protection conferred by Clause 3.

The noble Lady was also concerned that without guardians there would be no protection whatsoever for an individual after 16. If she looks at the clause she will appreciate there are opportunities provided for that to be set aside.

Other questions were asked by the noble Lady in relation to the effect of the Bill on the availability of legal aid. I would advise her that current provision is made which enables a minor child to be legally aided. The effect of the Bill is to require all children under the age of 16 to act through a guardian. That in any case will not be a problem where consent is readily available. Where the child does not have consent but needs to act with legal aid, the provisions of the Bill at Clause 1(3) (f) (i) ensure that any existing rule of law or practice whereby civil proceedings may be brought, defended or entered into by any person under the age of 16 is not to be affected by the Bill. So, if a young person under 16 requires to have legal aid to achieve that purpose, Clause 2(1) will assist him in respect of such legal aid applications as are commonly entered into in similar circumstances.

I appreciate also that another concern, which has been expressed in Scotland and reflected here by the noble Lady, is that the Bill might mean that the law of plagium or child theft would be extended up to 16. I can advise her that the crime of plagium relates to victims who are under the age of puberty only. This has been determined as including only girls below the age of 12 and boys below the age of 14. If the noble Lady looks at Clause 1(3) (c) of the Bill, she will find there that it is provided specifically that the delictual or criminal responsibility of any person shall not be affected by the provisions of the Bill.

A number of interesting questions were raised by the noble Lord, Lord Robertson, and my noble friend Lord Ashbourne, relating to the position of children in relation particularly to medical matters. The sponsor of this Bill, the noble Lord, Lord Macaulay, has already dealt with that matter. In a sense, I believe that it was apprehended that he had pre-empted the questions by answering them before they were asked, and perhaps I may leave the matter there. I have no doubt that very careful consideration will be given to what was said.

I hope that some of the answers I have given will be helpful to those who might consider tabling amendments. I appreciate that a number of other questions have also been asked and, if I can help in the interval before Committee stage, I shall be very glad to do so.

I conclude by saying to the noble Lady, Lady Saltoun, that in a somewhat suspicious fashion she was concerned that what lay behind this provision was an effort to bring Scots law into line with English law. I suggest that if she would like to attend upon the Scottish Law Commissioners at Causeway Side in Edinburgh, she will find that, although they are always interested in securing the useful harmonisation of our laws, they are not now, and I suspect that they never will be, driven by the desire to see Scots law subjected to the law of England.

7.32 p.m.

Lord Macaulay of Bragar

My Lords, this has been an interesting debate. I am grateful to all Members of your Lordships' House who have taken part. Many of the questions raised have been answered by the noble and learned Lord the Lord Advocate but perhaps I could add a word or two before we leave the subject.

The noble Lady, Lady Saltoun, asked why there should be change. The report of the commission sets out very clearly why we should change. The reason is that the law is out of date. It is little understood even by lawyers, as I mentioned when I spoke earlier. As regards consultation, the majority of persons and institutions which were consulted or made observations to the commission was in favour of change.

The noble Lady also suggested that the Bill had been brought forward in order to bring Scots law into line with the law of England. With respect, I do not think that on a fair reading of the Law Commission's approach to the matter that is a fair criticism. As has been pointed out more than once in correspondence and in the observations made on this Bill, it deals with a very limited area of the law. It deals with the question of transactions and one or two allied topics. It does not set out to reform the law of parent and child. That is a matter which is under active consideration by the Law Commission and a paper on guardianship has already been circulated. I understand that the consultation period is now over and in due course proposals will be brought forward by the Law Commission arising out of the view adopted as a result of consideration of the representations made.

The noble Lady also raised the matter of legal aid, a point which was answered by the noble and learned Lord the Lord Advocate. On the 20th June 1991, the Scottish Legal Aid Board wrote to the Scottish Child Law Centre. I quote from the letter: If the Age of Legal Capacity (Scotland) Bill becomes law, there will obviously require to be certain consequential amendments to the Legal Aid Regulations to take account of the abolition of the concepts of curators and tutors". That would mean the substitution of guardians for the purposes of legal aid. The letter goes on: At present … for the purposes of legal aid, a child is a person under the age of 16 years. An application on behalf of a child is made by the parent or guardian or by any person in whose care the child is or by a person acting for the purposes of any proceedings as the child's tutor or curator". The writer goes on to make other observations and I can let the noble Lady have a copy of the letter. Most importantly he says: For these reasons, I think it unlikely that the passing of the Bill will have any radical effect on legal aid". In fact, at least one instance has been brought to my attention of a pupil child being involved in a court process in a sheriff court in Scotland. I do not believe that the fears about legal aid have any real foundation. Certainly the status of young persons affected by the Bill with regard to legal aid will not be diminished.

The House has already heard explained that the status of minority will not be abolished. It still exists. However, one has to turn to the Long Title and Clause 5(1) of the Bill to find the nub of this piece of legislation. It is not an all-embracing piece of legislation. It is the start of a review of the situation of children in modern society.

The noble Lady asked whether a child could refuse medical attention. Of course a child could refuse it. But what happens after the refusal? That is another matter. We are not dealing with refusal in this Bill; we are dealing with consent. It is a very difficult problem raised by the noble Lords, Lord Robertson of Oakridge and Lord Ashbourne. It is a community problem which we must all examine and ask whether that is the way in which society should be run. As an individual, look at it that way. My first reaction is to say that if any person is under 16 the parents must know before anything happens to the child. Unfortunately that is not the way of the world.

The noble Lord, Lord Robertson, indicated in a letter to me that he had read very fully the section on this matter in the Law Society report. It is clear that detailed consideration was given to all the arguments for and against the involvement of parents. After detailed consideration the commission decided in favour of Clause 2(4). If a young girl of 15 is to have an abortion and her parents do not know, that is perhaps the way things are. If the parent finds out, the parent is still the guardian of the child and can take such action as the parent sees fit to deal with that situation. It is a difficult area of life these days. I am afraid that we have to face up to the realities of life and say that if the child consents and is capable of understanding the consequences, it is up to the doctor to consider what should be done.

Although the best interest test has not been adopted by the commission, as the noble Lord, Lord Morton, said, most doctors would look to the best interests of the child. A doctor would not sign a form authorising abortion unless it complied with the provisions set out in the Abortion Act.

The question of plagium has been raised by the noble and learned Lord the Lord Advocate. The issues of religion and freedom of activity—raised by the noble Lady, Lady Saltoun—have bedevilled consideration of this fairly simple piece of legislation arising out of detailed consultation. We are dealing with transactions that have legal effect. It does not involve a transaction having legal effect if one's 15 year-31d son or daughter says, "I'm going to be a Moonie as from tomorrow"—or a Catholic, Protestant, atheist, or whatever it may be. That could never be said to be a transaction. That is why I emphasise again that we must consider the skeleton of the Bill which deals with transactions having legal effect as defined in the Bill, and with the exceptions provided.

The same considerations apply to freedom of association. If a child says that he wishes to go to the youth club tomorrow night and sets off, the parent can either clip him round the ear if he considers it a not very good youth club, or he can do as he sees fit. But he cannot stop the child going unless he takes certain procedures perhaps involving the courts. However, such matters have nothing whatever to do with legal transactions. That is why I say—with great respect to those who have raised the issues—that they have gone off at a tangent and have not considered the core of the Bill as spoken to by the noble and learned Lord, the Lord Advocate. We are dealing with legal transactions as they affect minors under the provisions of the Bill.

I hope that with those explanations and those given by the noble and learned Lord, the Lord Advocate, we have covered the issues raised sufficiently to persuade any noble Lord who is considering putting an amendment down at Committee stage perhaps to think again and consider the greater good of the young people of Scotland in connection with commercial transactions. We live in a changing world where people enter into commercial transactions at earlier ages. They become involved in social matters such as abortion and so on. We, as the senior people in Scotland and England, must consider the reality of life today and try to trim the legislation to protect young people from their own immaturity in an ever-changing world with all the pressures that are put on them by salesmen and so on. I do not need to go into that. No doubt all noble Lords have had good examples of such pressures.

With those observations, I commend the Bill to the House. I ask that the House give the Bill a Second Reading. In so doing, I again express my gratitude for the interesting contributions made by Members of your Lordships' House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.