How is a First Minister of Scotland appointed?

On 29 April 2024 Humza Yousaf announced his intention to stand down as leader of the Scottish National Party (SNP). Once his party has elected a successor, he will submit his resignation as First Minister of Scotland to the King.

This Insight looks at the law regarding the appointment of the next First Minister. It also examines how an “extraordinary” general election might take place.

Who chooses the First Minister?

Unlike at Westminster, where a Prime Minister is appointed by the Monarch under the royal prerogative, the First Minister of Scotland is nominated for appointment by Members of the Scottish Parliament (MSPs). This takes place when a First Minister resigns or following an election.

Theoretically, any MSP could stand for First Minister. In practice, however, only the leader of the party with the most MSPs has ever successfully received the Scottish Parliament’s nomination. At present, the largest party is the SNP. The date of the parliamentary vote to select Humza Yousaf’s successor is not yet known.

Under section 46 of the Scotland Act 1998, once a First Minister has tendered their resignation to the King, the Scottish Parliament has a period of 28 days in which to nominate one of its members for appointment as their successor.

Section 45(1) of the 1998 Act provides that:

The First Minister shall be appointed by His Majesty from among the members of the Parliament and shall hold office at His Majesty’s pleasure.

Rules for nominating a First Minister

A candidate to become the new First Minister must be an MSP. Their nomination must be supported by at least one other MSP.

If there is only one candidate, then that individual only requires a simple majority to become the Parliament’s nominee. MSPs vote in favour of or against the candidate and abstentions are disregarded.

If there is more than one candidate, however, then the nominee must be chosen through an exhaustive ballot. MSPs vote in favour of their preferred candidate, or they abstain. The candidate with the fewest votes is eliminated each time until one candidate has received more votes in favour than the other candidates combined. That candidate becomes the Parliament’s nominee.

The Presiding Officer will invite each candidate to speak in support of their candidacy. On 28 March 2023 there were four candidates:

• Humza Yousaf (the then SNP leader)
• Douglas Ross (Scottish Conservative leader)
• Anas Sarwar (Scottish Labour leader)
• Alex Cole-Hamilton (Scottish Liberal Democrat leader).

Mr Yousaf received 71 votes in favour in the first ballot, more than the other candidates combined (57 votes), and was therefore the Parliament’s nominee for First Minister.

Once MSPs have chosen their nominee, under section 46(4) of the 1998 Act the Presiding Officer of the Scottish Parliament recommends to the King the appointment of that MSP as First Minister.

An early election for the Scottish Parliament?

There has been media speculation about an early general election in Scotland. An early election, however, can only happen under two scenarios.

Under section 3 of the 1998 Act, if the 28-day period for the election of a First Minister “ends without such a nomination being made” then the Presiding Officer is required to propose a day for the holding of an “extraordinary general election”. The King would then issue a proclamation (a legal document) to dissolve the Scottish Parliament and require an election to be held on the date proposed by the Presiding Officer.  The new Parliament must then meet within seven days of that election.

The other statutory route to an early election is if the Scottish Parliament itself resolves that it should be dissolved early. However, this resolution would need the support of two-thirds of all MSPs (not just those voting) to be carried: this means 86 votes.

As this would result in an “extraordinary” general election, meaning it is outside the usual five-yearly cycle, then the next “ordinary” Scottish Parliament election would still take place in May 2026. There has never been an extraordinary election in Scotland or Wales, although one took place for the Northern Ireland Assembly in March 2017.

Swearing in ceremony

If a First Minister is successfully nominated within the 28-day statutory period, then they are appointed via Royal Warrant, a legal document authorised by the King. The new First Minster is then sworn in at the Court of Session, Scotland’s senior civil court.

The Lord President of the Court of Session administers the “official declaration”, or oath of office. Secondly, he administers another declaration to the First Minister as Keeper of the Scottish Seal (this is sometimes mistakenly called the Great Seal of Scotland). Finally, the Lord President administers the declaration (or oath) of allegiance to the King.

In response to all three, the new First Minister, with right hand upheld, silently indicates their assent by bowing their head.

By custom, the First Minister of Scotland becomes a member of the Privy Council of the United Kingdom, a body which advises the King on exercising his statutory and prerogative powers. It is also likely that the new First Minister will be invited to a private audience with the King.

About the author: Dr David Torrance is the devolution specialist at the House of Commons Library

Photo by Claudio Divizia on Adobe Stock