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The death in September of Her Majesty Queen Elizabeth II may have prompted public speculation about her private fortune and the administration of her estate. But it has long been established that the Sovereign’s will is exempted from the requirement of a grant of probate, and the courts have no jurisdiction over the Sovereign’s estate. The same is not the case for other members of the Royal Family, as recent litigation over the will of His late Royal Highness Prince Philip demonstrated, in a case that raised questions about transparency and accusations of acting as a ‘secret court’.
It also provided an opportunity to delve into a bit of royal history, and a demonstration of how, over a century or so, a tradition of deference has given way to expectations of greater transparency in public life.
It was, as they say in sporting circles, a game of two halves. The first half took place almost entirely in private, though the judgment was later published: Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam). The second was played out in the glare of media scrutiny, being heard in open court and reported in the press: Guardian News and Media v The Executor of HRH The Prince Philip, Duke of Edinburgh [2022] EWCA Civ 1081.
The case involved an application by Prince Philip’s executor for an order that his will be sealed up and that no copy of it should be made for the record or kept on the court file, and a direction to exclude the value of his estate from the grant of probate. The application was made under r 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) which allows the court to reverse the usual rule, under s 124 of the Senior Courts Act 1981, that wills, once deposited with the court following the grant of probate, must be ‘open to inspection’.
The default position in favour of public access to a will can therefore be reversed in a particular case if a judge rules that such inspection would be ‘undesirable or otherwise inappropriate’. In the case of senior members of the Royal Family, a practice has grown up over the last century or so for their wills to be sealed up and locked away, on this basis, for an indefinite time.
None of this applies to Her Majesty The Late Queen Elizabeth II, however, thanks to long-standing authority to the effect that the Sovereign’s will does not need to be proved by a grant of probate and any application in respect of such a will must be refused for want of jurisdiction: see In the Goods of His late Majesty King George III, deceased (1822) 1 ADD 255, 162 ER 89.
The application came before the President of the Family Division, Sir Andrew McFarlane, sitting in his capacity as Head of Probate. He noted that in the past such applications had always been heard in private and invariably granted, without any public judgment ever being given.
He could have continued this opaque tradition. Instead, he not only gave a public judgment afterwards, but even considered whether the hearing should be conducted in public. However, both the Executor and the Attorney General, joined as the only respondent to the application, dissuaded him from doing so. Indeed, they dissuaded him from even considering the application itself in open court, let alone the substantive hearing.
‘In short, I accepted that to have a series of announcements, hearings and then a judgment would be likely to generate very significant publicity and conjecture over an extended period, and that this would be entirely contrary to the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters. The publicity would, therefore, in part, defeat the core purpose of the application. I also 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.’
The idea that ‘only the Attorney General can speak, as a matter of public law, to the public interest’ was based on the case of Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435. That was a case where a person attempted to bring an action, in the public interest, against a union that was threatening to disrupt postal services for political reasons. The Attorney General declined to allow it to proceed, and the court upheld that decision on the basis that he alone could represent the public interest.
Nonetheless, it is common in cases where the courts make decisions affecting the privacy of hearings or to apply reporting restrictions, to allow members of the press or others affected to make representations opposing or modifying the restrictions. That did not happen here. Instead, the Attorney General was simply assumed to represent the public interest and no competing voice, no alternative point of view, was represented.
As to the substantive issue also the judge seems largely to have accepted the arguments put for the executor, again supported by the Attorney General. These included protecting the privacy and dignity of the sovereign and the institution of the monarchy, protecting the Royal Family from undue intrusion into private matters, the lack of any real possibility of fraud or unsatisfied creditors (one of the reasons why commoners’ wills are left open to public inspection), plus the need to continue to follow what had been a consistent practice for many years. Moreover, anyone who might have a genuine need to inspect the will could always apply to the court. All in all, it was said, ‘the public interest strongly favoured not permitting inspection of the will’. The same public interest also favoured withholding the value of the estate from the grant of probate.
The President agreed. He said, at para 51, that even though the test under NCPR r 58 creates an exception to the default position in favour of openness, it does not require there to be ‘exceptional’ circumstances. The words ‘undesirable’ and ‘inappropriate’ were not qualified by the addition of an adverb such as ‘wholly’ or ‘significantly’ and should be given their ordinary meaning. The hurdle was not, he said, an especially high one.
He accepted the statement of the Attorney General that the public interest strongly favoured not permitting publication of the will and details of the estate. The unique status of the sovereign as head of state meant there was an ‘inherent public interest in protecting the sovereign’s dignity, and that of the close members of her family, in order to preserve their position and fulfil their constitutional role’.
In previous cases involving the sealing of royal wills, there does not seem to have been any decision as to when or even whether they might ever be made public. In this case the President took the opportunity to consider how long such an order should properly last. He rejected a suggestion that the period of secrecy should be as long as 125 years, concluding that 90 years was ‘proportionate and sufficient in all the circumstances’. He also ruled that the court should now publish a complete list of all the sealed royal wills in the special safe. That was done by way of an appendix to the judgment.
After the President’s judgment was published, The Guardian newspaper sought and obtained permission to appeal on the ground that the court had 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 should have been heard in private. That was said to represent a serious interference with open justice.
The appeal, at least, was held in open court. It came before the Master of the Rolls, Sir Geoffrey Vos, sitting with Dame Victoria Sharp PQBD and King LJ.
Although the appeal was said not to be concerned with the judge’s substantive decision to seal up Prince Philip’s will and the related orders made, the relief sought by The Guardian was, in essence, that the case should be heard all over again – but this time in accordance with the principles of open justice. If that were to happen, they might then be in a position, with more information and evidence, to make representations on the substantive matters.
The Guardian also challenged the assumption that the Attorney General was solely entitled to represent and determine the public interest in the matter. On this, at least, the Court of Appeal, in large measure agreed.
Giving the main judgment, Sir Geoffrey Vos MR and Dame Victoria Sharp PQBD held that the judge had been wrong to say that only the Attorney General could, as a matter of public law, speak to the public interest in the proceedings being held in public. The case of Gouriet was not dealing with that issue at all. But as the previous cases involving applications to seal royal wills demonstrated, the Attorney General was entitled to be a party to the proceedings in his or her historic role as the guardian of the public interest, and to express a view as to what form of hearing was in the public interest.
The media might also, in fairness, be heard on such a question, since the decision engaged the right to freedom of expression under Article 10 of the Human Rights Convention (and s 12 of the Human Rights Act 1998); but if they were not parties to the proceedings they had no right to be heard before any order as to a private hearing was made.
While endorsing The Guardian’s submissions as to the critical and constitutional importance of open justice and the rareness and strictness of the exceptions, they said the fact that the media had no legal right to attend and make submissions whenever a party applied for a hearing to be held in private meant that the failure to allow them an opportunity to do so on this occasion was not wrong in law. Nor did the judge act wrongly or unfairly in failing to consider a lesser interference with open justice – for example, a hearing might have proceeded with media reporters present, and able to apply a measure of scrutiny to the hearing, on the strict condition that they report nothing about it until the judgment was released.
On this last point, King LJ gave a separate judgment which, while not actually dissenting, expressed her significant reservations on the question whether some lesser interference with the principle of open justice might have been devised while maintaining the dignity of the Sovereign and the privacy of the Queen and the Royal Family. Any logistical challenges should not of themselves justify a wholly private hearing when the interests of justice would be served by the media being present on terms.
But in the final analysis it was a matter for the judge’s discretion and her Ladyship could not say the President in the present case had been wrong to conclude that publication of a full judgment after the event was sufficient to meet the needs of the case.
Having considered and not entirely rejected the idea of a lesser interference with open justice, it was disappointing that the Court of Appeal did not in the end lay down any definitive guidance on how such a case should be handled in future. The judgment simply makes clear that media representatives who are not party to the proceedings initially, but are aggrieved by the court’s decision, have no automatic right to be heard but are entitled to apply to reverse or vary the court’s order.
The same presumably applies equally to anyone else aggrieved by the decision, such as a legal blogger, academic researcher – or in this case royal archivist or biographer. Regrettably, the interests of such non-media court observers were not fully explored in the appeal because The Guardian’s case was primarily focused on the position and expectations of the media. But while they may serve a valuable function as the ‘eyes and ears of the public’, the principle of open justice is about much more than just media access.
This is an abridged version of an article first published in Family Law.
Paul Magrath is Head of Product Development and Online Content at ICLR. He is also a trustee of the Transparency Project and a regular legal commentator. Paul is co-author of Transparency in the Family Courts (Bloomsbury Professional: 2018) and recently contributed a chapter to The Courts and the People: Friend or Foe? edited by DJ Galligan (Hart: 2021).
The death in September of Her Majesty Queen Elizabeth II may have prompted public speculation about her private fortune and the administration of her estate. But it has long been established that the Sovereign’s will is exempted from the requirement of a grant of probate, and the courts have no jurisdiction over the Sovereign’s estate. The same is not the case for other members of the Royal Family, as recent litigation over the will of His late Royal Highness Prince Philip demonstrated, in a case that raised questions about transparency and accusations of acting as a ‘secret court’.
It also provided an opportunity to delve into a bit of royal history, and a demonstration of how, over a century or so, a tradition of deference has given way to expectations of greater transparency in public life.
It was, as they say in sporting circles, a game of two halves. The first half took place almost entirely in private, though the judgment was later published: Re: The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam). The second was played out in the glare of media scrutiny, being heard in open court and reported in the press: Guardian News and Media v The Executor of HRH The Prince Philip, Duke of Edinburgh [2022] EWCA Civ 1081.
The case involved an application by Prince Philip’s executor for an order that his will be sealed up and that no copy of it should be made for the record or kept on the court file, and a direction to exclude the value of his estate from the grant of probate. The application was made under r 58 of the Non-Contentious Probate Rules 1987 (‘NCPR’) which allows the court to reverse the usual rule, under s 124 of the Senior Courts Act 1981, that wills, once deposited with the court following the grant of probate, must be ‘open to inspection’.
The default position in favour of public access to a will can therefore be reversed in a particular case if a judge rules that such inspection would be ‘undesirable or otherwise inappropriate’. In the case of senior members of the Royal Family, a practice has grown up over the last century or so for their wills to be sealed up and locked away, on this basis, for an indefinite time.
None of this applies to Her Majesty The Late Queen Elizabeth II, however, thanks to long-standing authority to the effect that the Sovereign’s will does not need to be proved by a grant of probate and any application in respect of such a will must be refused for want of jurisdiction: see In the Goods of His late Majesty King George III, deceased (1822) 1 ADD 255, 162 ER 89.
The application came before the President of the Family Division, Sir Andrew McFarlane, sitting in his capacity as Head of Probate. He noted that in the past such applications had always been heard in private and invariably granted, without any public judgment ever being given.
He could have continued this opaque tradition. Instead, he not only gave a public judgment afterwards, but even considered whether the hearing should be conducted in public. However, both the Executor and the Attorney General, joined as the only respondent to the application, dissuaded him from doing so. Indeed, they dissuaded him from even considering the application itself in open court, let alone the substantive hearing.
‘In short, I accepted that to have a series of announcements, hearings and then a judgment would be likely to generate very significant publicity and conjecture over an extended period, and that this would be entirely contrary to the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters. The publicity would, therefore, in part, defeat the core purpose of the application. I also 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.’
The idea that ‘only the Attorney General can speak, as a matter of public law, to the public interest’ was based on the case of Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435. That was a case where a person attempted to bring an action, in the public interest, against a union that was threatening to disrupt postal services for political reasons. The Attorney General declined to allow it to proceed, and the court upheld that decision on the basis that he alone could represent the public interest.
Nonetheless, it is common in cases where the courts make decisions affecting the privacy of hearings or to apply reporting restrictions, to allow members of the press or others affected to make representations opposing or modifying the restrictions. That did not happen here. Instead, the Attorney General was simply assumed to represent the public interest and no competing voice, no alternative point of view, was represented.
As to the substantive issue also the judge seems largely to have accepted the arguments put for the executor, again supported by the Attorney General. These included protecting the privacy and dignity of the sovereign and the institution of the monarchy, protecting the Royal Family from undue intrusion into private matters, the lack of any real possibility of fraud or unsatisfied creditors (one of the reasons why commoners’ wills are left open to public inspection), plus the need to continue to follow what had been a consistent practice for many years. Moreover, anyone who might have a genuine need to inspect the will could always apply to the court. All in all, it was said, ‘the public interest strongly favoured not permitting inspection of the will’. The same public interest also favoured withholding the value of the estate from the grant of probate.
The President agreed. He said, at para 51, that even though the test under NCPR r 58 creates an exception to the default position in favour of openness, it does not require there to be ‘exceptional’ circumstances. The words ‘undesirable’ and ‘inappropriate’ were not qualified by the addition of an adverb such as ‘wholly’ or ‘significantly’ and should be given their ordinary meaning. The hurdle was not, he said, an especially high one.
He accepted the statement of the Attorney General that the public interest strongly favoured not permitting publication of the will and details of the estate. The unique status of the sovereign as head of state meant there was an ‘inherent public interest in protecting the sovereign’s dignity, and that of the close members of her family, in order to preserve their position and fulfil their constitutional role’.
In previous cases involving the sealing of royal wills, there does not seem to have been any decision as to when or even whether they might ever be made public. In this case the President took the opportunity to consider how long such an order should properly last. He rejected a suggestion that the period of secrecy should be as long as 125 years, concluding that 90 years was ‘proportionate and sufficient in all the circumstances’. He also ruled that the court should now publish a complete list of all the sealed royal wills in the special safe. That was done by way of an appendix to the judgment.
After the President’s judgment was published, The Guardian newspaper sought and obtained permission to appeal on the ground that the court had 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 should have been heard in private. That was said to represent a serious interference with open justice.
The appeal, at least, was held in open court. It came before the Master of the Rolls, Sir Geoffrey Vos, sitting with Dame Victoria Sharp PQBD and King LJ.
Although the appeal was said not to be concerned with the judge’s substantive decision to seal up Prince Philip’s will and the related orders made, the relief sought by The Guardian was, in essence, that the case should be heard all over again – but this time in accordance with the principles of open justice. If that were to happen, they might then be in a position, with more information and evidence, to make representations on the substantive matters.
The Guardian also challenged the assumption that the Attorney General was solely entitled to represent and determine the public interest in the matter. On this, at least, the Court of Appeal, in large measure agreed.
Giving the main judgment, Sir Geoffrey Vos MR and Dame Victoria Sharp PQBD held that the judge had been wrong to say that only the Attorney General could, as a matter of public law, speak to the public interest in the proceedings being held in public. The case of Gouriet was not dealing with that issue at all. But as the previous cases involving applications to seal royal wills demonstrated, the Attorney General was entitled to be a party to the proceedings in his or her historic role as the guardian of the public interest, and to express a view as to what form of hearing was in the public interest.
The media might also, in fairness, be heard on such a question, since the decision engaged the right to freedom of expression under Article 10 of the Human Rights Convention (and s 12 of the Human Rights Act 1998); but if they were not parties to the proceedings they had no right to be heard before any order as to a private hearing was made.
While endorsing The Guardian’s submissions as to the critical and constitutional importance of open justice and the rareness and strictness of the exceptions, they said the fact that the media had no legal right to attend and make submissions whenever a party applied for a hearing to be held in private meant that the failure to allow them an opportunity to do so on this occasion was not wrong in law. Nor did the judge act wrongly or unfairly in failing to consider a lesser interference with open justice – for example, a hearing might have proceeded with media reporters present, and able to apply a measure of scrutiny to the hearing, on the strict condition that they report nothing about it until the judgment was released.
On this last point, King LJ gave a separate judgment which, while not actually dissenting, expressed her significant reservations on the question whether some lesser interference with the principle of open justice might have been devised while maintaining the dignity of the Sovereign and the privacy of the Queen and the Royal Family. Any logistical challenges should not of themselves justify a wholly private hearing when the interests of justice would be served by the media being present on terms.
But in the final analysis it was a matter for the judge’s discretion and her Ladyship could not say the President in the present case had been wrong to conclude that publication of a full judgment after the event was sufficient to meet the needs of the case.
Having considered and not entirely rejected the idea of a lesser interference with open justice, it was disappointing that the Court of Appeal did not in the end lay down any definitive guidance on how such a case should be handled in future. The judgment simply makes clear that media representatives who are not party to the proceedings initially, but are aggrieved by the court’s decision, have no automatic right to be heard but are entitled to apply to reverse or vary the court’s order.
The same presumably applies equally to anyone else aggrieved by the decision, such as a legal blogger, academic researcher – or in this case royal archivist or biographer. Regrettably, the interests of such non-media court observers were not fully explored in the appeal because The Guardian’s case was primarily focused on the position and expectations of the media. But while they may serve a valuable function as the ‘eyes and ears of the public’, the principle of open justice is about much more than just media access.
This is an abridged version of an article first published in Family Law.
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