The public interest was not harmed by excluding the media from a hearing where a senior judge decided to seal Prince Philip’s will for 90 years, an appeal court has heard.
Sir James Eadie QC, representing the attorney general, made the argument on the second day of an appeal by the Guardian against a decision to seal Philip’s will at a hearing from which the press were excluded.
In September last year, Sir Andrew McFarlane, the president of the family court, ordered that the late Duke of Edinburgh’s will be sealed for 90 years and that the value of his estate not be disclosed.
The wills of 33 members of the Windsor family have been sealed from public access over the past century following requests by their executors. The judiciary has never refused such a request relating to deceased members of the Windsor family.
Eadie told the court that “the principle of open justice isn’t immutable” and that the two factors in favour of secrecy that had been relied upon by McFarlane – dignity of the sovereign and privacy – were not disputed by the Guardian.
He also argued that there was a distinction between the Windsor family’s private wealth and monies received by the family out of public funds, arguing that while the size of the annual stipend provided by parliament for the upkeep of the monarchy would be a matter of legitimate public debate, the value of Philip’s estate would not be.
“The [president] made clear findings about public curiosity, and the essentially commercial interests of the press in a context like this, and he distinguished those things from real and true matters of public interest in the legal sense,” Eadie argued.
This week the Guardian reported that at least £187m of assets had been passed down by the Windsor family in the secret wills.
Representing the executors of Philip’s will, Jonathan Crow QC said the public interest had been represented by the attorney general, who agreed with the executors that the will should be secret. Referring to the attorney general, Crow said: “The protector of the public interest agreed with the outcome, and the procedure we were urging.”
Asked by the court of appeal judges whether a procedure could have been arranged whereby the press were asked to attend on confidential terms, as has happened in other sensitive cases, both Crow and Eadie argued that there would be practical difficulties in arranging such a measure.
They also argued that anyone could now apply for the opening of any of the 33 sealed wills identified as a result of McFarlane’s original judgement.
Caoilfhionn Gallagher QC, representing the Guardian, argued that there was a “sliding scale” of options the president should have considered, such as a hearing that journalists could observe but not report on until judgment was issued.
In response to the executors’ claim that the Guardian’s submissions represented “an utterly barren procedural appeal”, Gallagher argued that “procedural fairness is a key part of natural justice, and is not to be dismissed”.
She said the failure to consider whether and how to solicit the views of the press had “bled into” the resulting consideration of the public interest, in which the president decided that privacy and the dignity of the sovereign justified rendering the will secret, but did not hear any arguments from the press or from historians in favour of openness.
“It is hard to imagine a more severe interference with the open justice principle than the approach that was adopted in this case,” Gallagher said.
Judgment will be handed down at a later date.
