Clause 1.—(JURISDICTION OF COURT IN RELATION TO VARIATION OF TRUST PURPOSES.) (Hansard, 4 July 1961)

§ The Lord Advocate
I beg to move, in page 2, line 4, at end insert: (2) For the purposes of the foregoing subsection a person who is over the age of pupillarity but has not attained the age of twenty-one years (whether acting with the concurrence of a curator, administrator-at-law or other guardian or not) shall lie deemed to be incapable of assenting; but before approving an arrangement under that subsection on behalf of any such person the court shall take such account as it thinks appropriate of his attitude to the arrangement.

Mr. Deputy-Speaker
I think it would be for the convenience of the House to discuss, with this Amendment, the following Amendment in the name of the Lord Advocate.

§ The Lord Advocate
I think it would be convenient to discuss the following three Amendments together, Mr. Deputy-Speaker.
The point raised in this Amendment is a new one, which I have discussed with a number of members of the legal profession since the Bill went through Committee. It arises from the fact that in Scotland persons under the age of 21 go through two stages; they start in pupillarity—a girl to the age of 12 and a boy to 14—and from then they are in minority until the age of 21.
A minor in Scotland has fairly wide powers. It depends, to some extent, on whether or not he has a curator. He 1411 can enter into contracts, for example, but for four years after reaching the age of 21 he can reduce the contract on the ground that he has suffered some sort of prejudice—what is called lesion—but I think that "prejudice" is the lay phrase that hon. Members will understand.
In the Bill as it stands a court would not be able to give consent to a claim on behalf of a minor, although it could on behalf of a pupil. Because of a minor's right during the four years after reaching the age of 21 to annul a contract, no trustee is going, in practice, to accept a minor's signature on the dotted line. Accordingly, I felt it right —and this is a matter which the Law Reform Committee did not consider, and I have discussed it with one or two of that Committee's members and other bodies and I think that we are all agreed that if this is going to work the court must have power to give consent on behalf of a minor as well as a pupil—that before approving the arrangement a court shall take such account as it thinks appropriate of the minor's attitude. If the minor were a girl aged 20, and married, and if she objected to the arrangement, there is little doubt that a court would reject it on her behalf as well. This is a necessary provision in order to make this workable.

§ Mr. T. Fraser
The Lord Advocate seems to have made out a case for the Amendment. My only difficulty is that, so far as I can see, a pupil and a minor are not specifically referred to in the foregoing subsection, so that the first Amendment states: (2) For the purpose of the foregoing subsection a person who is over the age of pupillitary but has not attained the age of twenty-one years (whether acing with the concurrence of a curator, administrator-at-law or other guardian or not) shall be deemed to be incapable of assenting; but before approving an arrangement under that subsection on behalf of any such person the court shall take such account as it thinks appropriate of his attitude to the arrangement. That seems to be perfectly reasonable, but the point of all this, apparently, is to bring out the differentiation between a pupil and a minor and to provide appropriate protection for a curator or guardian. But the only reference to age in the foregoing subsection is a reference to non-age.

§ Mr. A. C. Manuel (Central Ayrshire)
Unborn?

§ Mr. Fraser
"Non-age" does not mean unborn. I understand that nonage is under 21. I should have thought that the need for subsection (2) would not have arisen inasmuch as the whole of the foregoing subsection deals with the person of non-age. However, I am in a little difficulty about it. I appreciate that I may not have listened sufficiently keenly to the learned Lord Advocate. He seemed to be making a case for the Amendment, but I think what he said gave the impression that the foregoing subsection dealt with pupils and minors whereas it does not deal with pupils and minors at all.

§ The Lord Advocate
The hon. Gentleman is quite right. Non-age includes both minors and pupils. But in lines 9 and 10 we refer to … any of the beneficiaries who by reason of non-age or other incapacity is incapable of assenting … A pupil is by reason of his age incapable of assenting, but normally a minor, although he is under 21, is not incapable of assenting merely because of his age. I hope I have made this rather complicated matter clear. That is why we refer back. In fact, under the Bill as it stands, a minor would not come under Clause 1 (1, a) except in very special circumstances.

§ The Lord Advocate
I beg to move, in page 2, to leave out line 36.

Mr. Deputy-Speaker
This and the next Amendment in Clause 2, page 3, go with the Amendment in Clause 6, page 4, line 1.

§ The Lord Advocate
These Amendments are drafted to comply with an undertaking which I gave in Committee to the hon. Members for Hamilton (Mr. T. Fraser) and for Edinburgh, East (Mr. Willis) when I withdrew a rather ham-handed Amendment which I had on the Order Paper. I said that I would think again, and this is the result which I think makes the position rather better than it was.

§ Mr. T. Fraser
May I say how obliged I am to the Lord Advocate for putting these Amendments on the Order Paper. We had an animated discussion in Standing Committee on the question of construing this Measure with the Act of 1921. I know that my hon. Friend the Member for Edinburgh, East (Mr. Willis) joins with me in thanking the Lord Advocate.