Time for change

In light of John Swinney becoming the new Scottish First Minister earlier this month, Christine O’Neill KC and Emily Tarbet explore the legal and constitutional issues that arise when change occurs.

The political landscape in Scotland has seen some significant changes in recent times, with John Swinney taking on the role of First Minister of Scotland from Humza Yousaf on 8th May 2024, just over a year after Yousaf took over from Nicola Sturgeon on 29th March 2023.

In light of these developments, some of the legal and constitutional issues that arise when there is a change of Scottish First Minister are discussed below.

Choosing a First Minister

As in the relationship between the Prime Minister and the UK Parliament, the First Minister (and the ministers they then appoint) must be a member of the Scottish Parliament. Although the First Minister is formally appointed by the King in terms of section 45(1) of the Scotland Act 1998 and holds office “at [His] Majesty’s pleasure”, the individual appointed by the King is the MSP recommended to him by the Presiding Officer of the Scottish Parliament. The Presiding Officer must recommend the person who has been nominated by the Scottish Parliament itself.

A First Minister will hold office until one of the following occurs:

• A Scottish general election is held
• The First Minister tenders their resignation to the King
• The office of First Minister becomes vacant otherwise than by resignation
• The First Minister ceases to be an MSP (otherwise than by the dissolution of the Scottish Parliament)

If any one of those events occurs, Parliament must make its nomination of a new First Minister within 28 days.

Resignation of a First Minister

In terms of section 45(2) of the 1998 Act, the First Minister may voluntarily tender their resignation at any time. Resignation is achieved by way of a letter to the King and, while the King is not expressly required to accept the resignation, he may be said to have a constitutional obligation to do so.

A First Minister can also be compelled to resign and must do so if the Scottish Parliament formally resolves that the Scottish Government no longer enjoys the confidence of the Parliament (section 45(2) of the 1998 Act). In such circumstances, all Scottish Government ministers (including junior ministers) are also obliged to resign.

However, a First Minister is not compelled (by law) to resign where a vote of no confidence in them alone is carried in the Scottish Parliament; there would of course be political consequences of any such vote.

In terms of Rule 8.12 of the Scottish Parliament’s Standing Orders, a motion of no confidence must be supported by 25 MSPs to be scheduled for debate by the Parliamentary Bureau. If the motion receives the requisite support it will be included in a programme which, if agreed, will be debated and voted upon by Parliament.

The legal effect of a resignation

Where a First Minister is compelled to resign because of a vote of no confidence in the Scottish Government, the resignation is presumed to have immediate effect. It is less clear whether a voluntary resignation also has immediate effect or whether a period of ‘notice’ can be given. This matters because once a resignation is formally tendered, the 28-day period is triggered under section 46 of the 1998 Act. During those 28 days, a new First Minister must be nominated by the Scottish Parliament, failing which an extraordinary general election must be held.

Where a resignation (or incapacity) requires a temporary replacement to be installed, First Ministerial functions can be exercised by an acting First Minister designated by the Presiding Officer of the Scottish Parliament.

In the circumstances of a voluntary resignation, a First Minister may therefore decide to announce their intention to resign ahead of actually doing so and remain in office until their successor is appointed. This avoids any problems caused by the tight timescales imposed by the 1998 Act, slowing down the process and allowing time for the selection of a new leader to take place. This was the approach taken by Alex Salmond, Nicola Sturgeon and Humza Yousaf.

Other events terminating the First Minister’s appointment

If a First Minister ceases to be an MSP for any reason other than by the dissolution of the Scottish Parliament, the nomination process whereby the Scottish Parliament identifies a successor will be triggered.

In the case of the dissolution of Parliament, this does not in and of itself terminate the First Minister’s appointment (nor that of the rest of the Scottish Government). The First Minister and the Scottish Government remain in office throughout the dissolution and general election period. Once the result of the election is known, the Scottish Parliament must conduct the nomination process described earlier. If the First Minister is re-nominated, they will be re-appointed. If they are not, the First Minister will continue to hold office until their successor has been appointed.

The nomination procedure will also be triggered where the office of First Minister becomes vacant for other reasons – for example, if the First Minister passes away in office, as happened in the case of First Minister Donald Dewar who died in 2000. In circumstances such as these, a temporary replacement may be required. First Ministerial functions in this case will be exercised by a person nominated by the Presiding Officer who must be an MSP (or, in the case of dissolution, must have been an MSP prior to dissolution – see sections section 45(4) and (5) of the 1998 Act). In Dewar’s case, the functions were exercised by Jim Wallace, now Lord Wallace of Tankerness, who was then Deputy First Minister.

Contrast with the UK Prime Minister

Unlike the position with the UK Prime Minister, the appointment and resignation of whom is a matter of constitutional convention, the Scottish First Minister’s role and terms of appointment are governed to a much greater extent by statute.

It is a matter for debate which process is preferable and each has its merits. However, with Holyrood and Westminster having seen three First Ministers and three Prime Ministers respectively within the last two years, it would be difficult to argue that one or the other offers any guarantee of longevity.

Written by Christine O’Neill KC, Partner, and Emily Tarbet, Solicitor, Brodies LLP