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Baroness Faithfull: May I just pursue this point? Am I inferring from what my noble and learned friend says that we are having the narrower interpretation because of lack of resources?

Lord Fraser of Carmyllie: No, what it says is that each local authority shall provide such day care for children in need within their area who are aged five or under and have not yet commenced attendance at school as appropriate; and they may provide such day care for children in their area who satisfy the conditions mentioned in (a) and (b) but are not in need. It is therefore somewhat wider, but it does not impose an absolute duty upon them.

Lord Macaulay of Bragar: Looking at the Bill as it stands and the amendment proposed by the noble and learned Lord, why do we ricochet between "may" and "shall"? I do not quite understand it. Clause 23(1) states:


"A local authority may provide accommodation for a child looked after by them".
Then Clause 23(2) reads:
"A local authority may arrange for a child whom they are looking after".
We then come to the amendment which states:
"Each local authority shall provide"
Subsection (2) of the amendment then states:
"A local authority may provide".
Subsection (3) then reads:
"Each local authority shall provide".

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However, at the end of subsection (3) of the amendment, we go back again to "may". We have the "may" and the "shall" difference. What does it all mean?

Lord Fraser of Carmyllie: Absolutely. It is not invariably a rule of construction, but in these circumstances a duty is imposed where the word "shall" is used, and where "may" is used that would empower the local authority to provide those services, and if it did so it would have the statutory authority of Parliament so to do.

Lord Macaulay of Bragar: Where the word "shall" appears it is an obligation upon the local authority to provide the service contained in Clause 23 of this Bill. May I ask who will pay for it?

Lord Fraser of Carmyllie: That is what I said. The noble Lord is sufficiently experienced to know that, as it

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goes through the statutes, "shall" can sometimes mean "may". It usually means "shall" but not invariably. Here there is a duty to provide the services referred to and it is probably because there are clearly questions of resources that that is not the broadest of duties imposed. If the noble Lord wishes to offer a guarantee to the people of Scotland that these are to be provided, I would be very interested to hear him say that.

On Question, amendment agreed to.

Clause 24, agreed to.

Lord Fraser of Carmyllie: This may be a convenient moment for the Committee to adjourn until tomorrow.

The Deputy Chairman of Committees: The Committee stands adjourned until tomorrow at 3.30 p.m.

        The Committee adjourned at half-past seven o'clock.


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