On 15 February 2023, the First Minister signalled her intention to resign both as First Minister and leader of the Scottish National Party.
In a press conference, First Minister Nicola Sturgeon MSP, indicated that she will remain in post as both First Minister and party leader of the SNP until the SNP has selected a new party leader. At the point that the First Minister stands down, the Scottish Parliament will be required to nominate a new First Minister. This short blog explains the process for nominating and selecting a new First Minister when a First Minister resigns.
What does the Scotland Act 1998 say?
Section 45 of the Scotland Act 1998 provides for that the First Minister shall be appointed by the King “from among the members of the Parliament”. That section also provides that the First Minister is to tender their resignation to the King.
Section 46 of the Scotland Act sets out the circumstances in which, and how the Scottish Parliament should nominate a First Minister. That section provides that where the First Minister tenders their resignation to the King the Scottish Parliament is required to nominate one of its members for appointment as the new First Minister. The Parliament is given 28 days (unless certain specified intervening circumstances arise) from the date of resignation to do so and the Presiding Officer then recommends to the King that that person be appointed as First Minister.
What do the Parliament’s Standing Orders say about the process for nominating a First Minister?
Chapter 4 of the Parliament’s Standing Orders detail the provisions for the Scottish Parliament nominating a First Minister.
Chapter 4 provides that the date and time for the voting period (i.e. the time when members of the Scottish Parliament vote) to select a nominee for First Minister shall be determined by the Parliament on a motion of the Parliamentary Bureau and the date and time of the voting period shall be notified to members.
Any member can nominate a candidate for appointment as First Minister. This must be done no later than 30 minutes before the voting period for selection of a nominee and must be done by submitting a written nomination to the Clerk. For a nomination to be valid, it must be seconded by another member of the Parliament.
Members nominated as a candidate for First Minister must have taken the oath of allegiance or made a solemn affirmation.
The Presiding Officer must then announce the names of the candidate or candidates and the nominee is then selected in accordance with Rule 11.10 ‘Selection of the First Minister’.
Each member has one vote when selecting a nominee for appointment as First Minister unless a second round of voting is required. The result of the Parliament’s vote is valid only if:
“the number of members who voted is more than one quarter of the total number of seats for members. For this purpose, in calculating the number of members who voted—
- account shall be taken not only of those voting for or against a candidate, but also of those voting to abstain; and
- where there is more than one round of voting, the result of each round of voting shall be treated as a separate result and the number of members who voted shall be taken to be the total number who voted in that round.”
Where there is only one candidate nominated to be appointed as First Minister, the candidate is selected “if a simple majority of votes in the candidate’s favour is obtained.” The same applies in instances where there are two candidates in a round of voting.
If there are more than two candidates in a round of voting then a candidate can be successful where the number of votes for them exceeds the total number of votes cast for all of the other candidates. If this does not happen, the candidate with the lowest number of votes is eliminated (or they withdraw) and further voting continues. In instances where candidates receive the same number of votes, no candidate is selected and a further selection process is set.
There is no specified limit on the number of rounds of voting which can occur.
Whilst the First Minister usually represents the largest party in the Scottish Parliament, this doesn’t have to be the case.
What if the Parliament cannot agree on a nomination for appointment as First Minister?
As set out above, section 46 of the Scotland Act 1998 provides that the Parliament has 28 days from the date of resignation to select a nominee for appointment as First Minister.
Where the period of 28 days elapses without such a nomination being made then the Presiding Officer shall, in terms of section 3(1)(b) of the Scotland Act 1998, propose a date for the holding of an extraordinary general election.
Sarah McKay, SPICe Research