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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 369 CASE COMMENT: R. (ON THE APPLICATION OF MILLER AND ANOTHER) v. SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION By Ashley Cochran and Heather Cochran* Brexit” may seem far removed from Canada, but the recent decision of the UK Supreme Court in R. (on the application of Miller and another) v. Secretary of State for Exiting the European Union1 hits closer to home. While the decision turns largely on the “ interpretation of the UK’s domestic legislation implementing the EU treaties and devolution settlements with Northern Ireland, Scotland and Wales, it also provides rare insight into the UK’s constitutional and political landscape— most significantly, prerogative powers, political conventions and referenda. As our country is endowed with a constitution “similar in Principle to that of the United Kingdom”,2 Miller holds relevance in Canada too. This is underscored by the court’s references to Canadian jurisprudence. BACKGROUND Following the stunning June 2016 referendum upset that saw “leave” narrowly defeat “remain”, the British government proposed to use its prerogative powers to withdraw from the EU by serving notice under Article 50 of the Treaty on European Union. Article 50 provides that “a member state may decide to withdraw from the Union in accordance with its own constitutional requirements” by serving a notice of its intention and negotiating arrangements for its withdrawal from the Union; the treaties governing the EU “shall cease to apply” to that state within two years after notice or in accordance with the agreement. The case was launched by Gina Miller, an investment manager and philanthropist who initially became known as an advocate for transparency in investment and pension funds, and Deir Tozetti Dos Santos, a Spanish hair- * The opinions expressed in this article are the authors’ own and do not necessarily represent the views of their employer, The Ministry of Justice and Attorney General of British Columbia.


May Advocate 2017
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