The Guardian newspaper will challenge a decision to exclude the press from a hearing over whether the Duke of Edinburgh’s will should remain secret at the Court of Appeal. Philip, the nation’s longest-serving consort, died aged 99 on April 9 last year, two months before he would have turned 100.
After the death of a senior member of the royal family, it has been convention for more than a century that an application to seal their will is made to the President of the Family Division of the High Court. 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 a private hearing in July last year. The Guardian is now challenging the decision to hold that hearing in private, arguing that it was “disproportionate and unjustified”.
Court hearings are usually held in public, in line with the principle of “open justice”, unless there are “exceptional” reasons to exclude members of the press and public. In grounds of appeal filed with the Court of Appeal earlier this year, lawyers for the newspaper argue the High Court judge “erred in law” in denying the media an opportunity to make representations as to whether the hearing of the application to seal up the will should go ahead in private, with no representatives of the press allowed to attend.
The Court of Appeal granted The Guardian permission to appeal in January. There is no challenge against the decision to seal the will.
In the grounds, the newspaper’s lawyers say: “The High Court erred in failing to consider any lesser interference with open justice than a private hearing from which accredited members of the press should be excluded. As a result, the decision to hear the application to seal up the will in private was disproportionate and unjustified.”
They said there was a “strong public interest in transparency” in the application to seal up the will, as the Court of Appeal criticised the process for sealing up wills as not being transparent enough in 2008, when it considered a challenge in relation to the Queen Elizabeth the Queen Mother’s will. They also said it was wrong of the executor of Philip’s estate to argue that the media’s interest in the hearing was “prurient curiosity”, adding: “These are fundamental matters of public interest concerning royal family members and the Sovereign in a constitutional monarchy."
In a ruling in October last year, 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 at the time: “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."
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”. The Court of Appeal hearing, before three senior judges, is due to start at 10.30am and will be live-streamed on the court’s website.
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