Section 41 Committee Recommendations
We wish to give a timely reminder to all councils to be aware of the way in which they make resolutions based on committee recommendations.
Some councils delegate powers and functions to some or all of their committees set up under Section 41 of the Local Government Act 1999 (the Act). However, other councils do not delegate powers and functions to their committees, meaning that those committees can only make recommendations to the council on any matter which the committee considers (ie matters within the scope of its terms of reference). The council is then required to separately consider and decide the matter itself.
It has come to our attention that some councils merely “adopt” the minutes of the meetings of their committee(s) which do not have delegated powers and functions and assume that by doing so they have passed a substantive resolution in the terms of the recommendation made by the committee and contained in the “adopted” minutes of the meeting of the committee.
However, this is not the case.
A committee recommendation to the council must be dealt with in the same way as a recommendation made by an officer of the council. First, a motion must be moved in the same terms as the recommendation. Secondly, the motion must be seconded. Then, the motion must be voted on by the council and a majority vote obtained before the committee recommendation becomes a resolution of the council.
The most important point here is that there must be a substantive resolution of the council in the terms of the committee’s recommendation in order for the council to have properly and effectively made a resolution based on the committee’s recommendation. The mere adoption of minutes of a committee meeting does not have this effect. In some limited circumstances, a resolution “in accordance with the committee’s recommendation” could be used. However, councils should seek advice before making a resolution in those terms to determine if it is appropriate in the circumstances.
Implications for Councils
A resolution adopting minutes of a committee meeting does not have the effect that a recommendation contained in those minutes is passed as a resolution of the council.
We encourage all councils to seek individual advice regarding the structure of committees established under Section 41 of the Act and the adoption of committee recommendations.
