Legal action against the Attorney General and the Queen’s private attorneys has been initiated following a decision to bar media from attending a hearing on the Duke of Edinburgh’s will.
The Guardian seeks leave to claim that the High Court’s failure to properly consider whether the press should be allowed to attend the hearing or make representations constitutes such a serious interference with the principle of open justice that the matter should be reconsidered.
In September, the President of the Family Division of the High Court, Sir Andrew McFarlane, ruled that Prince Philip’s will must be withheld from the public for 90 years, after a secret hearing of which the media had not been informed and were not allowed to attend. .
The only parties allowed to attend court were Philip’s executor, Farrer and Co Trust Corporation, an affiliate of Queen Farrer and Co’s private attorneys, and Attorney General Michael Ellis. Both sides succeeded in persuading the judge to exclude the media from the hearing.
McFarlane said he “accepted the argument that only the Attorney General can speak, in public law, of the public interest, and that there was, legally, no role for those who might represent the media during a hearing (public or private) by asserting any contrary opinion in the public interest ”.
Under UK law, when a person dies, any will they have left is automatically made public. This is done in order to ensure that the will is executed, to bring it to the attention of potential beneficiaries, and to prevent fraud against a person’s estate.
The Windsor family is exempt from this requirement. Although the will of the monarch is hidden from the public by law, there is no law passed by parliament requiring that the wishes of other members of the royal family be hidden. There is also no established legal definition of who is, and who is not, a member of the Royal Family. However, around 100 years ago, the royal family started making legal demands that their wills be hidden from the public.
In the judgment summarizing the closed-door case relating to Prince Philip’s will, McFarlane identified the first will to be kept secret as that of Prince Francis of Teck, the younger brother of Queen Mary, who died in 1910.
Teck’s will was kept secret in order to cover up a sex scandal. Mary persuaded a judge to keep it closed as it is understood he was shown to have bequeathed precious family jewels to a mistress.
McFarlane wrote: “The answer to the question ‘Why should there be an exception for senior royals?’ is, in my opinion, clear: it is necessary to strengthen the protection afforded to the privacy of this unique group of individuals, in order to protect the dignity and prestige of the public service of the Sovereign and other members close to her family.
“While there may be public curiosity as to what private arrangements a member of the Royal Family may choose to make in their will, there is no real public interest in the public knowing this information. completely private… The interest of the media in this regard is commercial. “
The practice of sealing the wills of the Windsor family from the public was last examined in 2007 when an accountant, Robert Brown, requested access to the wills of the Queen Mother and Princess Margaret on the grounds that he believed they would provide proof that he was Marguerite’s illegitimate child.
His candidacy was rejected. However, he successfully argued that the family court failed to address issues of public importance related to the practice of sealing the Windsor family’s wills away from public scrutiny.
Brown’s case also uncovered the existence of a secret agreement between the attorney general, the former president of the family court, the royal household and Farrer and Co. The document was later partially disclosed.