John Swinney on track to remain first minister - but there's some parliamentary hurdles

As the dust begins to settle, our new batch of MSPs will shortly walk through the doors of Holyrood – many for the first time – to begin the job they’ve been elected to do.

Attention will now turn to the formation of the next Scottish Government. And with no party having an outright majority, that will mean bargaining and negotiations.

While there were plenty of claims and counterclaims on the campaign trail about who would do a deal with who, now is when the rubber hits the road. The election results may see some softening of stances from the days of deals being ruled out.

What could a deal look like?

John Swinney is in the strongest position to remain the first minister. With seven seats shy of a majority, he will have the least work to do in terms of convincing another party to let him continue in the top role.

His immediate instinct would likely be the pair up with the Greens, as his party has done in the past. But the Lib Dems have also been open about their willingness to work with others – though Alex Cole-Hamilton has previously resisted the idea that his party could usher in another SNP government.

Beyond that, it’s difficult to see who else Swinney might turn to. A deal with Reform, Labour or the Conservatives feels politically untenable – though that doesn’t necessarily mean it couldn’t happen, especially if there’s a change of leader among those other parties. Recall the SNP did used to work well with the Tories under Annabel Goldie.

The first hurdle for those conversations will be the election of the first minister in the parliament. This is expected to take place on either Tuesday 19 or Wednesday 20 May (more on that below).

But as politics fans will recall from 2021, the election of a first minister does not mean conversations about cross-party deals stop. Sturgeon was re-elected first minister and had appointed her ministerial team, after all, when some months later the Bute House Agreement with the Greens was announced. This provided her with a majority in parliament.

It is not yet clear how Swinney will approach the situation, as he spent most of the campaign talking about winning a majority outright.

If he is re-elected first minister later this month, he may try to govern once more as a minority government, securing support on an issue-by-issue basis. He could seek to do a confidence and supply arrangement, similar to the one between the Conservatives and DUP after the 2017 Westminster election, or could go further by bringing another party into government like the Bute House Agreement. He could even, though it feels unlikely, opt for a full-on coalition.

But could anyone else be first minister?

Technically, yes. But politically, no.

Both Anas Sarwar and Malcolm Offord would need to work together to make that happen, and decide among them who to make first minister. It would then also require the support of all of the Greens, Convseratives and Lib Dems on top of that. None of them would want to see either man in the top job.

How exactly is the FM elected?

Any MSP can stand to be first minister.

John Swinney will be nominated by one of his MSPs. If he is the only candidate to be nominated, there is one round of voting where MSPs can vote for, against or abstain.

But if a member of another party wishes to stand, they can do so. In this instance, each name will be read out and members who wish to vote for that candidate will cast their vote. MSPs who wish to abstain will then be given the opportunity to do so.

Where there is only one or two candidates, agreement to the election of first minister requires a simple majority. That’s half plus one of all votes cast, but crucially excludes abstentions when calculating the total. This is how Nicola Sturgeon was elected first minister in 2016. Both she and then Lib Dem leader Willie Rennie stood for the role, with Sturgeon gaining 63 votes. While this is not an absolute majority, there were 59 abstentions – meaning she easily had a simple majority.

The rule is slightly different if there are three or more candidates. In this instance, rather than a simple majority, parliamentary rules state a person is elected so long as the number of votes for one candidate exceeds the total for all other candidates. This is how John Swinney was elected in May 2024, where he secured 64 votes compared to the combined 58 votes for Douglas Ross, Anas Sarwar and Alex Cole-Hamilton. The Greens abstained in that vote.

If no candidate is elected after this first round, the person with the least number of votes will be eliminated from the election. There will be further rounds under the same rules described above.

What if no first minister is elected?

If after these votes no candidate meets the criteria to be first minister-elect, a future election will be arranged by the presiding officer.

But there is a time limit. In the unlikely event that 28 days on from the election there is no first minister, an extraordinary general election will be called – in other words, voters will head to the polling booths once more. This has never happened before.

What happens after an FM is chosen?

The nominated person will be formally sworn in at the Court of Session in Edinburgh. This is typically the day after the parliamentary vote.

That person can then begin appointing his or her cabinet and junior ministerial team. All eyes will be on who is arriving at Bute House – and in particular, how many of the Holyrood newbies will get those top jobs. It is no secret that soon-to-be-former-MPs Stephen Flynn and Stephen Gethins are ambitious. But such moves could put longstanding MSPs’ noses out of joint if they feel overlooked.

At the very least, there will need to be a new deputy first minister, finance secretary, transport secretary and rural affairs secretary – though reshuffles also provide an opportunity to shift around portfolios. Swinney has previously indicated a preference for smaller governments, so we could see the top team shrink.

Ministerial appointments require approval by the parliament, and this has historically happened in the days shortly after the first minister’s election.