Scotland's young people’s czar has urged the government to consult children as young as eight on whether underage sex should be treated as a criminal offence.

Professor Kathleen Marshall, the children’s commissioner, has said that children aged 13 and under must be given a say on the issue.

Earlier this year the Scottish Law Commission reviewed existing legislation and said that sex between consenting teenagers under the age of 15 should be decriminalised, effectively lowering the age of consent to 13.

But ministers intend to keep the age of consent at 16 and to make intercourse between children aged 13-15 an offence for both sexes.

At present, boys aged between 13 and 15 who engage in consensual sex with girls of the same age are committing an offence. Under the Sexual Offences Bill, which is passing through parliament, ministers propose to treat girls in the same way.

The bill also criminalises “sexual activity” between 8 to 12-year-olds.

Marshall believes the move would deter youngsters from seeking sexual health advice for fear that they could be reported to the police.

“If young people are going to be affected by the legislation, they should be consulted,” Marshall said. “Certainly, those aged 13 and upwards should be consulted because the bill has particular resonance for them. It would be inconsistent, illogical and hypocritical to argue that 8 to 12-year-olds are mature enough to be found guilty of sexual crimes, but too immature to be consulted.”

John Deighan, parliamentary officer for the Catholic church, said young children are not equipped to make decisions on such matters. “We need people with experience of the law to decide on issues like this,” he said.

A Scottish government spokesman said it has no plans to consult children: “We consulted a wide range of organisations, and many representing young people, before introducing our bill.”

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