A legal challenge over a decision to ban media organisations from a court case about the Duke of Edinburgh’s will is to be heard by the court of appeal.
The Guardian has been given permission by a court of appeal judge to bring the challenge against the attorney general and the Queen’s private lawyers.
Its legal action has been brought after the president of the family division of the high court, Sir Andrew McFarlane, ruled last September that the will of Prince Philip should be hidden from the public for 90 years.
It followed a private hearing that media organisations were not told about and were consequently prevented from attending.
The Guardian intends to argue that the case should be reheard in the high court because McFarlane failed to properly consider whether reporters should have been permitted to attend the original hearing, or make representations in favour of being allowed to attend. The paper argues that this was a serious interference with the principle of open justice.
Lady Justice King, a court of appeal judge, gave permission, stating that: “There is a real prospect of the applicant [the Guardian] succeeding on the ground that the high court erred in law in denying the media an opportunity to make submissions, or at least to attend and hear submissions, as to whether the substantive application to seal the will of His Late Royal Highness, the Prince Philip, Duke of Edinburgh should be heard in private.”
Judges only grant permission for a case to be heard in the court of appeal if they believe there is real possibility of winning or if there is some other compelling reason. At this stage, they are not making any decision on the ultimate outcome.
The legal challenge will focus attention on the secrecy that surrounds an obscure exemption that has been granted to the royal family. Wills made by members of the Windsor family are kept secret, in contrast to ordinary members of the public.
British law dictates that wills drawn up by members of the public are ordinarily made public after they die. Wills are published in order to ensure that they are correctly implemented, prevent fraud and alert all those who may benefit.
Since 1910, the wills of more than 30 members of the royal family – including distant relatives – have been concealed after legal applications. The high court granted these applications in private hearings.
A list of the wills that have been kept secret for more than a century are kept in a locked safe in the high court. In November, in a move towards transparency, McFarlane decided to publish the list of those royals whose wills have been sealed, although the contents of the wills are still concealed.
In September, McFarlane ruled that Philip’s will should be kept secret, adding: “The answer to the question ‘why should there be an exception for senior members of the royal family?’ is, in my view, clear: it is necessary to enhance the protection afforded to the private lives of this unique group of individuals, in order to protect the dignity and standing of the public role of the sovereign and other close members of her family.”
“While 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.”
He made the ruling after a hearing at which only Philip’s executor, Farrer and Co Trust Corporation, a subsidiary of the Queen’s private solicitors Farrer and Co, and the acting attorney general, Michael Ellis, were permitted to attend. Both parties successfully persuaded the judge to exclude the media from the hearing.
McFarlane said he “accepted the argument that only the attorney general can speak, as a matter of public law, to the public interest, and that there was, legally, therefore no role for those who might represent the media at a hearing (public or private) in putting forward any contrary view of the public interest”.
