IN a speech, last weekend Michael Gove urged a radical post-Brexit revamp of Whitehall to make it “less southern, less middle class”. He called for innovation and experimentation in policymaking and criticised those in the establishment who consider “that any departure from the status quo must be assumed to be more downside than upside”. He went on to say that had these establishment bodies “been able to interrogate George Washington, Thomas Jefferson and Alexander Hamilton in 1783 they would have concluded that American independence was an expensive, untried and unjustifiable innovation … they would have said it was novel and contentious and therefore it should be stopped”.

Well bravo, Michael Gove. I look forward to quoting his words back at him next time he pours scorn on those of us who support Scottish independence!

I am sure, of course, that Mr Gove did not intend his paean to embrace risk, adventure, experimentation and novelty to apply to viewers in Scotland. And, in truth, as other commentators have noted, it was not nearly as clever and original as Mr Gove thought it was. But there was something in it.

From the critical reaction across the board to the rather staid Higgins report last week, one senses that an appetite in Scotland exists to really do things differently as we exit the coronavirus crisis and seek to rebuild our society and economy. This appetite is reflected in the enthusiastic response of many on the nationalist left to Common Weal’s Resilient Scotland plan.

Scotland needs a revamp. But while the sort of adventurous innovative revamp we need could be commenced under devolution, it can only be fully realised with independence.

Last week in my column I argued that the SNP should be discussing and debating how we secure our independence and what we do with it. I said the time for avoiding discussion of Plan B is over.

There was the predictable chorus of outrage from some, including those who really ought to know better. It is extraordinary and not healthy that to advocate debate is seen as controversial. The words #nodebate should have no place in the SNP lexicon.

For the record, I have not endorsed the Plan B advanced by Angus Brendan MacNeil and Chris McEleny, which I understand to involve using the 2021 election as a proxy vote. I am not sure that plan has been fully developed or addresses how you bring the UK Government to the negotiating table, which will be vital. However, I think the SNP should consider what we do if Boris Johnson continues to refuse a Section 30 Order and I applaud Angus and Chris for trying to stimulate that debate.

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From time to time activists send me lengthy legalistic arguments about Scotland’s nebulous status in the Union which they believe, if ventilated in “the international courts”, would lead to Scotland’s independence. I’m afraid that belief is misguided. There is no legal shortcut to independence.

The route to independence is through the ballot box. We had an independence referendum in 2014. At that stage a clear majority voted against independence. We need to demonstrate public opinion has changed. Ideally, this should be done through a second referendum legally sanctioned by a Section 30 Order, like the first. However, the present Tory Government have indicated they won’t agree to that, presumably because they know it is likely we would win this time. Therefore, we need to discuss what to do in the event that they continue to withhold their agreement to Scotland holding a referendum sanctioned under the current constitutional set-up.

I have never advocated a wildcat or illegal referendum. It would be more than a little surprising if I had done so, given my legal background and that I spent a considerable amount of time last year litigating in the Scottish courts and the UK Supreme Court to reverse the effects of unlawful action taken by Boris Johnson.

My interest is in the question of how Scotland might hold a legally sanctioned referendum on the question of independence without having to be dependent on the Westminster Government’s permission.

READ MORE: Wishart calls for EU-backed independence referendum if Tories say no

Earlier this year, in her speech marking Brexit day, the First Minister acknowledged that it might be within the competence of the Scottish Parliament to hold an independence referendum and she spoke of the possibility of testing that in court, albeit she indicated she was reluctant to do so at that stage.

THE argument that the Scotland Act could be read in such a way as to allow Holyrood to hold a referendum on the question of independence is well established. In 2012, before the Edinburgh Agreement was reached, seven legal academics including three distinguished professors published a paper challenging the view that only Westminster has the authority to call an independence referendum.

Recently, one of the authors of that paper, Professor Aileen McHarg and her senior colleague Chris McCorkindale, reaffirmed this view, pointing out: “Although it is frequently asserted that a referendum on independence falls outwith devolved competence (as part of the reservation to Westminster of ‘the Union of the Kingdoms of Scotland and England’, Scotland Act 1998, Schedule 5, Part 1, para 1(b)), that issue has never been conclusively settled.”

Earlier this year, Aidan ONeill QC, fresh from his triumphs in the Article 50 and prorogation cases, produced a detailed opinion setting out the argument that Holyrood could legally hold an independence referendum. In it he employed some of the arguments about Scotland’s constitutional history and status in the Union that activists who write to me assert, and it is here that I think these arguments may be usefully employed.

We may find out sooner rather than later whether Aidan’s arguments will find favour, because he has been instructed by Martin James Keatings, convener of the grassroots group Forward As One, to bring a case before the Court of Session. The case has commenced and it seeks a ruling “that the Scottish Parliament has power under the provisions of the Scotland Act to legislate for the holding of a referendum on whether Scotland should be an independent country without requiring the consent of the UK Government or any further amendment by the UK Parliament to the Scotland Act 1998”.

It is possible that the court may rule the question hypothetical in the absence of any bill currently before Holyrood. However, the Advocate General (the British Government’s law officer for devolved matters), the Lord Advocate and the Scottish ministers are called as defenders. This means they will require to set out their position in writing to the court, so we should get a good idea of the respective positions of the British and Scottish governments before long.