§ Lord Lester of Herne Hillasked Her Majesty's Government:
Whether it is intended that the Hong Kong Court of Final Appeal will be empowered freely to decide whether an administrative act is within the "act of state" defence, or that the Final Court will he bound to give effect to the Chief Executive's certificate on that point.
§ Baroness Chalker of WallaseyThe availability of a plea of act of state is a question of law to be determined by the court in the light of the facts of the case.
Articles 8 and 18 of the Basic Law provide that the Court of Final Appeal has jurisdiction to apply the common law except in so far as it may contravene the Basic Law itself.
Article 19 of the Basic Law obliges the court to obtain an executive certificate but only on questions of fact concerning acts of state whenever such questions arise in the course of adjudication. This is consistent with the present position in the common law, whereby certificates on questions of fact concerning acts of state are binding on the courts. But such a certificate cannot pronounce on matters of law, as opposed to fact. In so far as it purported to do so, it would not be binding on the courts. Thus, the legal consequences which flow from the facts remain a matter of law for the courts.