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 appeals 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 the decision to seal Philip’s will at a hearing from which the press was excluded.
In September last year, Sir Andrew McFarlane, president of the family court, ordered that the Duke of Edinburgh be sealed for 90 years and that the value of his estate not be revealed.
The wills of 33 members of the Windsor family have been sealed from public access over the past century following requests from their executors. The judiciary has never rejected such a request involving deceased members of the Windsor family.
Eadie told the court that “the principle of open justice is not immutable” and that the two pro-secrecy factors McFarlane had relied on – the dignity of the sovereign and privacy – were not disputed by the Guardian.
He also argued that there was a distinction between the private wealth of the Windsor family and money received by the family from public funds, arguing that while the size of the annual salary provided by parliament for the maintenance of the monarchy would be a matter of legitimate public debate, the value of Philip’s property would not be.
“The [president] made clear findings about public curiosity and the essentially commercial interests of the press in such a context, and distinguished those things from real and genuine matters of public interest in the legal sense,” Eadie argued.
This week, The Guardian reported that at least £187m of assets had been passed on by the Windsor family in 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 kept secret. Referring to the attorney general, Crow said: “The protector of the public interest agreed with the outcome and the procedure that we were asking for.”
Asked by the appeal court judges whether a procedure could have been arranged whereby the press would be asked to attend on confidential terms, as has happened in other sensitive cases, both Crow and Eadie argued that there would be practical difficulties to organize such a measure.
They also argued that anyone could now apply to open any of the 33 sealed wills identified as a result of the original McFarlane trial.
Caoilfhionn Gallagher QC, representing the Guardian, argued there was a “sliding scale” of options the president should have considered, such as a hearing journalists could observe but not report until the judgment was handed down .
In response to the executors’ claim that the Guardian’s submissions represented “a completely sterile procedural remedy”, Gallagher argued that “procedural fairness is a key part of natural justice and should not be dismissed”.
He said the failure to consider whether and how to solicit the views of the press had “bleeded” into the resulting consideration of the public interest, in which the president decided that the privacy and dignity of the sovereign justified secreting the will, but he did. not hearing any arguments from the press or historians in favor of openness.
“It is difficult to imagine a more severe interference with the principle of open justice than the approach that was taken in this case,” Gallagher said.
The sentence will be handed down at a later date.