The High Court in London "usurped the function" of the Bloody Sunday inquiry last month when it overturned its decision not to grant automatic anonymity to 17 members of the Parachute Regiment and other soldiers who fired live rounds on Bloody Sunday, the Court of Appeal heard yesterday.
The inquiry team had not applied an irrational test when it balanced two competing considerations - on the one hand the genuine fears expressed by the soldiers that they would face reprisals if they were not granted anonymity, and on the other the inquiry's fundamental objective to conduct a "thorough, open and complete" search for the truth - and concluded, subject to special considerations, that the inquiry's objectives outweighed the soldiers' fears.
Opening the inquiry's appeal against the High Court ruling, Mr Christopher Clarke QC insisted Lord Saville could not restore public confidence, lost after Lord Widgery's inquiry, if he did not create public confidence by identifying the soldiers "at the very heart" of Bloody Sunday.
Fourteen people died on Bloody Sunday when they were shot by soldiers following a civil rights march in Derry. The inquiry is due to begin public hearings in the Guildhall, Derry, on September 27th. Mr Clarke said the inquiry accepted it was unlikely to be hampered in its objective of finding the truth by granting anonymity or by using letters of identification, since as an inquisitorial body it would know the soldiers' identity. However, the issue was not simply public perception, he argued, but the inquiry's belief that part of its function was "to carry out a public inquiry from which public confidence will flow".
Furthermore, the High Court exceeded their powers when it concluded the only test to determine anonymity was that used by the inquiry in July 1998. At that time, the inquiry decided it would grant a degree of anonymity - soldiers would be identified by their surnames only - provided the objective of seeking the truth was not compromised.
This decision was overturned by the High Court and the inquiry's decision in May not to grant automatic anonymity, save where reasonable risk could be justified, was overturned last month.
Mr Clarke conceded the inquiry "had a foot in both camps and satisfied neither" in May when it was faced with the choice of deciding between complete anonymity, which was unacceptable, or reversing the July test and accepting full anonymity must follow.
Mr Clarke told the Master of the Rolls, Lord Woolf, sitting with Lord Justice Walker and Lord Justice Tuckey, that the High Court had also misunderstood the inquiry's duty to report what it believed was the truth and its duty to conduct a public inquiry. The inquiry was entitled to conclude that the public interest, and its duty to carry out a public inquiry, outweighed the soldiers' fears for their safety. The hearing continues today.
Meanwhile, the former head of the 1st Battalion of the Parachute Regiment, Lieut Col Derek Wilford, was condemned yesterday after remarks he made on BBC Radio 4's Today programme.
Col Wilford complained about the continuing high profile in the media of the events which came to be known as Bloody Sunday, and criticised those who campaigned on the issue. He also suggested "almost every Ulster Catholic" would deny being a republican or representing republicanism.
New Dialogue, a cross-party group of MPs, said Col Wilford's comments were particularly ill-judged at a time when Northern Ireland was facing a future "rich in political possibility".