Subsection (1) provides for the First Minister to be appointed by Her Majesty from among members of the Scottish Parliament. It further provides that he shall hold office at Her Majesty’s pleasure. In terms of section 46, it is for the Parliament to nominate one of its members for appointment as First Minister and for the Presiding Officer to recommend to Her Majesty the appointment of that nominated person.
Subsection (2) provides that the First Minister may tender his resignation at any time. It also requires the First Minister to resign if the Scottish Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament.
Subsection (3) provides that the First Minister shall cease to hold office on the appointment of his successor.
Subsections (4) and (5) provide that, if the office of the First Minister is vacant, or if he is for any reason unable to act, his functions will be exercisable by a member of the Scottish Parliament, designated by the Presiding Officer. If the Parliament has been dissolved, the Presiding Officer may designate a person who ceased to be a member by virtue of the dissolution. The Standing Orders of the Parliament require the Presiding Officer to notify the Parliament of the name of any person whom he has designated.
Subsection (6) provides that a member designated under subsection (4) shall be capable of exercising the functions of the First Minister even if the Parliament is subsequently dissolved.
Subsection (7) provides that the First Minister shall be Keeper of the Scottish Seal. “The Scottish Seal” is defined in section 2(6) as being “Her Majesty’s Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland”. The First Minister became the Keeper on 6 May 1999 when this subsection was commenced. Previously, the Secretary of State for Scotland was the Keeper of this Seal in terms of section 8 of the Secretary of State for Scotland Act 1885.
Commentary Part II: the Scottish Administration Details of Provisions