Preferential Treatment

22nd May 2023

We’ve noted, in previous blogs, that the success of public bodies, including local authorities, in delivering effective services relies in no small part on them having constructive relationships with the public, key stakeholders and service users. This is because a lack of trust in those in public life does not just affect the reputation of any one individual, it can also erode confidence in public messaging, public bodies and the delivery of public services.

Mutual respect, communication and, above all trust, between those elected and appointed to serve as councillors and board members of public bodies and the council or public body’s officers or employees are also essential. Councils and public bodies will only function successfully when all involved work together effectively to perform their respective roles. Trust will only be maintained if they do so.

That’s why the Codes of Conduct for councillors and members of public bodies state that they must not use, or attempt to use, their position or influence as a councillor or member to:

• improperly confer on, or secure, an advantage for themselves, or others (such as friends and family);
• avoid a disadvantage for themselves, or create a disadvantage for others; and / or
• improperly seek preferential treatment or access for themselves or others.

The Codes further state that councillors and members should avoid any action that could lead members of the public to believe that preferential treatment or access is being sought.

Essentially, in order to maintain confidence in their role and in their council or public body, councillors and members must avoid conduct that is intended to further their own personal interests, or the interests of others they are connected to. They must also avoid conduct that may give the impression that they are seeking preferential treatment. The test is not simply whether it is their intention to seek preferential treatment, but also whether a member of the public, with knowledge of the relevant facts, would reasonably consider that preferential treatment was being sought. Seeking preferential treatment can be a breach of the Code, regardless of whether any action is taken as a result.

Councillors and members need to be aware of the inherent influence their role brings. They should remember that they have, or can be perceived as having, a position of power over officers and employees (particularly more junior members of staff).

Councillors and members should ensure, therefore, that they are not compromising officers and employees and are not preventing them from undertaking their duties properly and appropriately, by behaving in a manner that could result in them feeling threatened or intimidated. Officers and employees should not be made to feel pressured into taking a particular action or decision. Councillors and members should be aware that the imbalance in the relationship, in terms of influence, can mean that officers and employees may feel that they have to focus on a matter the councillor or member has raised, even if they have other work or tasks that should be completed as a higher priority. Councillors and members will not have a full awareness of the priorities and workload of individual officers and employees.

Councillors and members should always consider whether they are asking officers and employees to act in a way:

• that suggests they are seeking preferential treatment for themselves or others; and
• that would conflict with or call into question the officer’s or employee’s political impartiality, or which could give rise to criticisms that officers or employees are being used for party-political purpose or personal advantage.

Councillors and members should always bear in mind the key principles of public life (also known as the Nolan principles) and, in particular the principle of selflessness: holders of public office should act solely in terms of the public interest.