The Guardian newspaper has instigated legal action against the attorney general and the Queen’s private lawyers relating to a decision to ban journalists from a court hearing about the late Duke of Edinburgh’s Will.

Prince Philip died in April of this year at the age of 91. He had been the longest serving royal consort in history.

The Guardian is seeking permission to argue that the high court, by failing to properly consider where media outlets should attend the hearing is a serious interference with the principle of open justice and that the case needs to be reheard.

Hidden for 90 years

Sir Andrew McFarlane, the president of the family division of the high court, ruled that Prince Philip’s Will should be hidden from the public for 90 years. This followed a secret hearing that media organisations were not informed and were forbidden to attend.

The only parties who were allowed to attend were the Will’s executor, Farrer and Co Trust Corporation, which is a subsidiary of the Queen’s private solicitors, and the attorney general, Michael Ellis. The parties persuaded the judge to exclude the media from the hearing.

At the hearing, Sir Andrew said that he accepted that only the attorney general could speak to the public interest and therefore there was no role for those who might represent the media at a hearing in putting forward contrary views of the public interest.

Made public under British law

When someone dies, any will they leave behind is automatically made public under British law to ensure that the will is acted upon and to bring it to the attention of potential beneficiaries and prevent fraud.

The Windsors are exempt from this requirement, but although the monarch’s Will is hidden from the public by law, parliament has not passed a statute requiring the wills of other Royal family members to be hidden. In addition, there is no established legal definition of who is, and who is not, a member of the royal family.

About a century ago, the royal family started making legal applications to have their wills hidden from the public.

Jewels for the mistress

The first will to be kept secret was that of Prince Francis of Teck, Queen Mary’s younger brother who died in 1910. The will is understood to have included bequests of prized family jewels to a mistress and presumed why Queen Mary wanted it hushed up.

Regarding his decision, Sir Andrew wrote: “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.”

In 2007, the accountant Robert Brown sought access to the Wills of the Queen Mother and Princess Margaret as he believed the wills would provide evidence that he was Margaret’s illegitimate child. The application was rejected, but Brown successfully argued that the family court had failed to consider matters of public important by hiding the Windsor family’s wills from scrutiny. In addition, his case also revealed the secret agreement between the attorney general, the former president of the family court, the royals and Farrer and Co.

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