Labour needs legitimacy, not just power, to rule Holyrood

Is it OK to lose an election but still win power? This is the question that will hang over Scottish politics between now and the next Holyrood contest in 2026.
Last weekend a poll in The Sunday Times suggested the SNP was on track to win more Holyrood seats than any other party, with Labour coming a close second. And yet the expectation in such a scenario was that Labour would form the next Scottish government.
I am not at all sure that Scotland is ready for such an outcome. In fact I believe that Labour risks a crisis of legitimacy if it tried to take power in such circumstances. Why? Because I do not think the Scottish public are as politically savvy as those of us in the Holyrood bubble might like to think.
Let us stand back and look at this with a cold eye. The scenario thrown up by the Sunday Times poll is that despite coming second to the SNP, Labour would enjoy enough support from the Lib Dems and the Tories to win a parliamentary majority, and hence power.
And sure enough, this is what the rules allow. Electing a first minister is a numbers game. If you can claim the support of more MSPs than your opponent, you get to govern, regardless of which party those MSPs represent.
The rules are one thing. The political reality is another. And my gut feeling is that the Scottish electorate are not ready for an outcome in which the party that won the most seats was denied power.
We may have a PR parliament but we do not yet have a PR mindset in our politics. We do not think in the same way as countries on the Continent, where elections are followed by months of negotiations to put together unlikely alliances to govern. We tend to watch such machinations with bemusement and a tinge of superiority. We do things differently here. Despite having proportional representation in parliament for 25 years and in local government elections since 2007, we still have a “winner takes all” mentality. The party that wins the most seats has a moral right to govern.
Precedent suggests I am right. Take the 2007 Holyrood election that delivered the first SNP government. Labour lost to the Nationalists by a single seat. It would have been arithmetically possible for Labour’s Jack McConnell to have put together an alliance with the Tories and Lib Dems to outvote the SNP and cling on to power.
That did not happen. Alex Salmond, the SNP leader, was fully aware of this arithmetic possibility. So he made a great show of acting like he had won not only the most seats but power itself. He arrived in Edinburgh in a helicopter, touching down at Prestonfield House in an event staged to look like a president of the United States landing on the lawn of the White House. Salmond claimed the right to govern. There was no substantive challenge to this narrative. The SNP had won. Labour had lost. The Tories at Holyrood then sided with Salmond, and the rest is history.
The other important precedent is the 2010 UK general election, when David Cameron’s Tories won the most seats but were short of a majority. Despite Labour coming second, Gordon Brown tried to stay in Downing Street. In his autobiography Brown says: “The figures showed clearly that with Lib Dem support we could govern.”
Why did this not happen? The debate still rumbles on. But to my mind there was, in the country as a whole, no stomach for such a novel outcome. It felt wrong. It failed the test of fairness. The party that won the most seats was the winner of the election. Full stop. Anything else felt like jiggery pokery.
Have we, since 2007 and 2010, become so comfortable with continental-style PR politics that we could accept a different outcome? No, I do not think so. In fact there seems to be more disquiet about Holyrood’s electoral system than ever before.
At risk here is the principle of loser’s consent. Democracy works only when the losing side in an election consents to let the winning side govern. So what happens when there is a dispute over which is the winning side and which is the losing side? Recent American history suggests the very fabric of democracy can come under enormous strain.
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Received opinion within the Holyrood bubble is that Labour’s Anas Sarwar is Scotland’s next first minister, regardless of whether Labour beats the SNP. This is hubris. Can I respectfully suggest that the Scottish public might have other ideas? There is moral peril here, and Sarwar would be wise to acknowledge it. A Labour Party that tried to claim victory after coming second would face legitimate questions over whether it had the authority to govern. The basic level of goodwill necessary to operate as a government would be missing. The SNP, if so minded, could bring the machinery of parliamentary democracy to a standstill.
Let me be clear, I do not know how the SNP would react if Labour tried to seize power in this way. Would the Nationalists just roll over? Or would the SNP cry foul, mobilise its supporters and turn the election into a constitutional crisis?
I would rather we did not find out. This whole scenario can be avoided if one side wins a clear victory in 2026 and rides that victory all the way to Bute House, unchallengeable by the other side.
The alternative, I suggest, is much too messy to contemplate.