On Monday 29 April 2024, First Minister Humza Yousaf MSP, indicated his intention to resign as leader of the SNP and First Minister. The First Minister’s decision followed the end of the Bute House agreement. The First Minister indicated that he will remain in office until a successor as party leader is selected. At that point Mr Yousaf will formally resign as First Minister.
A SPICe blog ‘What does the end of the Bute House agreement mean?’ was published on 25 April 2024 and considers the cooperation agreement, the circumstances which led to it being ended and what this may mean for government in Scotland.
This blog explains motions of no confidence; the process for the resignation of a First Minister; the way a new First Minister is nominated and selected, and what happens if the Parliament cannot agree on a candidate for First Minister.
Motions of no confidence
A motion of no confidence is a motion which states that some MSPs do not have confidence in a government minister, the First Minister, or all Scottish ministers.
Rule 8.12 of the Parliament’s Standing Orders relates to motions of no confidence. A motion of no confidence must be supported by 25 MSPs in order for it to be scheduled for debate by the Parliamentary Bureau. If a motion of no confidence does secure the support of 25 MSPs, it will be included in a business programme (the Parliament takes a decision on parliamentary business on the basis of a business motion of the Parliamentary Bureau) and, if that programme is agreed, the Parliament will debate the motion of no confidence and vote on it.
Rule 8.12.3 provides that:
Members shall normally be given at least 2 sitting days’ notice of a motion of no confidence. Exceptionally, members may be given a shorter period of notice if in the opinion of the Parliamentary Bureau a shorter period is appropriate.
Following the end of the Bute House agreement, the Scottish Conservative leader, Douglas Ross MSP, lodged a motion of no confidence in the First Minister. Motion S6M-12993 states:
That the Parliament has no confidence in the First Minister, in light of his failures in government.
On Friday 26th April 2024, Anas Sarwar MSP, leader of Scottish Labour, lodged motion S6M-13005 which states:
That the Parliament has no confidence in the Scottish Government.
Are votes in motions of no confidence legally binding?
Section 45(2) of the Scotland Act 1998 provides that a First Minister is required to resign if the Scottish Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.
The First Minister may at any time tender his resignation to Her Majesty and shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament.
As such, motion S6M-12993 would not, if passed, require the resignation of the First Minister. If, however, the Parliament agreed to motion S6M-13005 this would require the First Minister’s resignation as it would constitute a vote of no confidence in the Scottish Government.
Office of the First Minister
The First Minister is selected by the Parliament from amongst its members. Unlike at the UK Parliament, the First Minister does not have to be a member of the largest party, although this is usually the case.
The Presiding Officer of the Parliament recommends to His Majesty The King that the individual selected by the Parliament is appointed as First Minister.
The First Minister is head of the Scottish Government and chairs the Cabinet. The First Minister is also able to, with the agreement of the Parliament, appoint other Ministers and junior Ministers. As well as being head of the Scottish Government, the First Minister represents Scotland in the UK and overseas.
Resignation of a First Minister
Under the Scotland Act 1998 (“the Act”) (section 45) the First Minister of Scotland is appointed by the King (after being selected by the Parliament) – and so is required to tender their resignation to the King.
In recent times, where a First Minister has indicated their intention to stand down, they have stayed in office as First Minister and party leader of the SNP until a successor has been appointed as leader of their political party. This was the case when Alex Salmond stepped down as First Minister and when his successor, Nicola Sturgeon MSP indicated that she was to resign as First Minister.
For example, Alex Salmond indicated he intended to resign as party leader of the SNP and as First Minister of Scotland on 19 September 2014 (the day after the poll for the referendum on Scottish Independence was held) but did not submit his resignation as First Minister to the Queen until 18 November 2014. The formal selection by the Scottish Parliament of Nicola Sturgeon MSP for appointment as First Minister took place the following day, 19 November 2014. Nicola Sturgeon was formally sworn in as First Minister on 20 November 2014.
It is only at the point a First Minister tenders their resignation to the King, that the Scottish Parliament is required to nominate a new First Minister.
Section 46 of the Scotland Act sets out the circumstances in which, and how the Scottish Parliament should nominate a 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.
Parliamentary process for the nomination and selection of a candidate for 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.
What happens if the Parliament cannot agree on a nomination for appointment as First Minister?
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. Following such a proposal, it would be for the Parliament to be dissolved by proclamation by the King.
Designation of a Member of the Parliament to exercise the functions of First Minister
Section 45(4) of the Scotland Act 1998, provides that:
If the office of First Minister is vacant or he is for any reason unable to act, the functions exercisable by him shall be exercisable by a person designated by the Presiding Officer.
Any person designated to exercise the functions of First Minister must be a member of the Scottish Parliament, or if the Parliament is dissolved, a member who ceased to be an MSP because of dissolution.
This power of the Presiding Officer was used in October 2000 when Jim Wallace, now Baron Wallace of Tankerness, was designated to exercise the functions of First Minister after the death of the Rt. Hon. Donald Dewar on 11 October 2000.
The Business Bulletin for Thursday 12 October 2000 states:
Following a request from the Scottish Ministers the Presiding Officer has, under the powers conferred on him by Section 45 of the Scotland Act 1998, designated Jim Wallace QC MSP to exercise the functions of the First Minister. This arrangement will be superseded in due course by the appointment of a new First Minister by Her Majesty The Queen.
The nomination by the Parliament of a Member for appointment as First Minister must be made by 7 November. Members will be advised in due course of the Bureau’s proposed date and time for the selection of the nominee.
The power was exercised again by then Presiding Officer, Sir David Steel, in November 2001 when First Minister Henry McLeish resigned on 8 November 2001. The Business Bulletin for Friday 9 November 2001 states:
Resignation of the First Minister
The Presiding Officer wishes to notify the Parliament that Her Majesty The Queen has accepted the resignation of Henry McLeish as First Minister.
Following a request from the Scottish Ministers the Presiding Officer has, under the powers conferred on him by Section 45 of the Scotland Act 1998, designated Jim Wallace QC MSP to exercise the functions of the First Minister. This arrangement will be superseded in due course by the appointment of a new First Minister by Her Majesty The Queen.
Jack McConnell was selected as nominee for First Minister by the Parliament on 22 November 2001 and was sworn in at the Court of Session in Edinburgh on 27 November 2001.
Sarah McKay, SPICe Research