A legal challenge has been lodged against the High Court’s decision to ban the media from a hearing about Prince Philip’s will.
The Guardian newspaper has launched legal action against the attorney general and the Queen’s private lawyers, arguing the High Court should have properly considered whether the press should be allowed to attend the hearing and present their arguments.
Lawyers for the outlet say that the failure to do this was such a severe contradiction to the principle of open justice that the case should be reheard.
Open Justice is a principle central to the British justice system that means proceedings ought to be open to the public, including the contents of court files and public viewing of trials.
The decision was made at a secret hearing in July which the media were not told about and were barred from attending, according to the Guardian.
The Duke of Edinburgh – the nation’s longest-serving consort – died aged 99 on April 9, just two months before he would have turned 100.
After the death of a senior member of the royal family, it has been convention for over a century that an application to seal their will is made to the President of the Family Division of the High Court.
At a hearing earlier this year, it was decided Prince Philip’s will should remain secret for 90 years to protect the ‘dignity’ of the Queen (pictured with Prince Philip at Royal Ascot in 2017)
This means the wills of senior members of the royal family are not open to public inspection in the way a will would ordinarily be.
The current president, Sir Andrew McFarlane, heard legal argument from lawyers representing Philip’s estate and the Attorney General – who represents the public interest in such matters – at the private hearing in July.
In a ruling published in September, Sir Andrew ordered that Philip’s will is to remain sealed for 90 years from the grant of probate – the formal process which confirms the authority of an executor to administer a deceased person’s estate – and may only be opened in private even after that date.
The judge said: ‘I have held that, because of the constitutional position of the Sovereign, it is appropriate to have a special practice in relation to royal wills.
‘There is a need to enhance the protection afforded to truly private aspects of the lives of this limited group of individuals in order to maintain the dignity of the Sovereign and close members of her family.’
He said the ruling was to make as much detail as possible public without ‘compromising the conventional privacy afforded to communications from the Sovereign’.
The Royal Family including Prince William, Prince Andrew, Prince Harry, Prince Charles, Prince Edward and Princess Anne (left to right) are seen following Philip’s coffin in April this year
Sir Andrew McFarlane (left), heard legal argument from lawyers representing the estate of Philip (right) and the Attorney General – who represents the public interest in such matters – at a private hearing in July and both parties persuaded him that the media should be excluded
Sir Andrew said he had decided to hold the earlier hearing in private because a series of announcements, hearings and then a judgment would have been likely to ‘generate very significant publicity and conjecture’.
He concluded this would be ‘entirely contrary to the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters’.
He added: ‘The publicity would, therefore, in part, defeat the core purpose of the application.’
The judge said: ‘I accepted the submission that, whilst there may be public curiosity as to the private arrangements that a member of the royal family may choose to make in their will, there is no true public interest in the public knowing this wholly private information.
‘The media interest in this respect is commercial. The degree of publicity that publication would be likely to attract would be very extensive and wholly contrary to the aim of maintaining the dignity of the Sovereign.’
Sir Andrew said that, as the Attorney General was there to represent the public interest at the hearing, there was no legal reason for any further representations by media organisations.
Sir Andrew said any media interest would be ‘commercial’ and that there is no ‘true public interest’ in the publication of Prince Philip’s will. Pictured: the high court in London (file photo)
Lawyers representing Philip’s estate had argued at the private hearing that news of that hearing and the application ‘might generate wholly unfounded conjecture’ which would be ‘deeply intrusive’ to the Queen and royal family.
Sir Andrew said that, as President of the Family Division of the High Court, he is custodian of a safe which holds 30 envelopes – each containing the sealed will of a deceased member of the royal family.
He said the earliest envelope is labelled as containing the will of Prince Francis of Teck, and the most recent additions are the wills of the late Queen Mother and Princess Margaret, the Queen’s sister.
In 2007, Sir Mark Potter, then president of the family division, dismissed an application by Robert Andrew Brown for the unsealing of the wills of the Queen Mother and Princess Margaret.
Mr Brown claimed to be the illegitimate child of Princess Margaret and asserted that he had an interest in unsealing and inspecting the wills in order to establish that claim.
However, his claim was not accepted by the court and was struck out as ‘vexatious and an abuse of process’ – a decision upheld by the Court of Appeal.