Playing football, hide and seek and skipping, all activities synonymous with being an eight year-old. Under Scots law, that same eight year old could also be held criminally responsible for his or her actions. Scotland has one of the lowest ages of criminal responsibility in the world, a fact criticised earlier this year by the United Nations Human Rights Committee.

This criticism should have come as no surprise to the Scottish Government since the UN Committee on the Rights of the Child has expressed similar concerns in its three reports on the UK since 1995. The convention of the same name requires states parties to set a minimum age of criminal responsibility, and while it does not specify any age, the committee has made clear that anything below 12 is unacceptable. It was also critical of the age of criminal responsibility, at present 10 years old, in the other parts of the UK, and that is being addressed in a Bill introduced recently in the House of Lords by Lord Dholakia.

In Scotland, Alison McInnes MSP has lodged an amendment to the Criminal Justice (Scotland) Bill that would raise the age of criminal responsibility to 12. At a stroke, this particular blot on the Scottish record on dealing with juvenile offenders could be removed.

The vast majority of children who commit offences in Scotland are dealt with by the children’s hearings system, with only a small number facing prosecution in criminal court.

The age of criminal responsibility in Scotland has been fixed at eight since 1928. In 2000, an advisory group to the Scottish Parliament recommended raising the age to 12, but the matter was referred to the Scottish Law Commission.

The Commission drew a distinction between holding a child responsible for his or her actions and what should happen thereafter. As a result of its recommendations, the Criminal Justice and Licensing (Scotland) Act 2010 amended the law to provide that no child under the age of 12 may be prosecuted in a criminal court for an offence, nor can anyone, regardless of age, be prosecuted for anything done before reaching that age. However, the 2010 Act did not alter the age of criminal responsibility itself. It remained at eight, leaving the law in a rather untidy and somewhat confusing state.

Tidiness alone is a poor justification for law reform, albeit consistency in the legal system lends it coherence and clarity is certainly a desirable goal. However 12 is a landmark age in Scottish child law overall. A 12 year-old can consent to medical treatment, or veto or consent to his or her own adoption. A 12 year-old can make a will. Thus, setting the age of criminal responsibility at 12 would be entirely consistent with other aspects of the law on children’s capacity.

But what about the case of a child under 12 who commits a very serious offence? An obvious example is the English case of Robert Thompson and Jon Venables who were 10 when they murdered two year-old James Bulger. Were a similar crime to occur in Scotland today, the offenders would not be tried by a criminal court but would go before a children’s hearing which can lead to various outcomes, including detention in secure accommodation .

If a child cannot be prosecuted in court below the age of 12, does the age of criminal responsibility matter? It does. After a period of time, people are generally freed from having to disclose criminal convictions in job applications and the like. However, the Scottish rules on non-disclosure of past offences do not apply in all circumstances and so, for example, reference can be made to them in civil proceedings and disclosure can be required when a person is applying for certain jobs or seeking to enter the legal profession. Thus, where a person’s sole criminal act was to shoplift, aged 10, and the matter was dealt with by a children’s hearing, that wrongdoing could follow him or her into adult life.

The Scottish Government has stated that it does not believe the Criminal Justice Bill is the right place to address this issue and will oppose the amendment. However, in my view, there is nothing to lose and everything to gain by supporting Ms McInnes’ amendment.

Elaine E Sutherland is a member of the Law Society of Scotland’s Family Law Committee, Professor of Child and Family Law at the University of Stirling, Scotland, and Distinguished Professor of Law at Lewis and Clark Law School, Portland, Oregon.