There was "no truth at all" in accusations of bias and bad faith made against the British Ministry of Defence, the High Court in London heard yesterday. Mr Ian Burnett QC, for the ministry, was speaking about the ministry's advice that ex-soldiers should not be required to go to Derry to face the Bloody Sunday inquiry.
Mr Burnett was supporting a challenge by 36 former soldiers to a ruling by the tribunal that military witnesses must attend the Guildhall in Derry to give their evidence, despite their fears of reprisal attacks by dissident republican groups.
Lawyers for the ex-soldiers - whose legal challenge will affect up to 400 former service personnel expected to be called as witnesses - have accused the tribunal of breaching their "right to life" under the European Convention on Human Rights by knowingly exposing them to the risk of death.
The soldiers, whose identities cannot be revealed for legal reasons, are willing to give evidence anonymously, but object to being forced to do so in Derry.
Their case is opposed by the tribunal and some of the 32 families of those killed or injured on Bloody Sunday, on January 30th, 1972.
Mr Burnett said: "We submit that all military personnel have genuine and reasonable fears for their safety in Northern Ireland. The attacks on them continue and elaborate precautions are taken to protect the military and the police service."
Replying to accusations of bias, Mr Burnett said that during the inquiry the Ministry of Defence had on occasions opposed the wishes of the military witnesses.
This including turning down requests to see classified papers and wide-ranging intelligence material on civilian witnesses.
Counsel for the inquiry, Mr Christopher Clarke QC, argued that the human rights obligation on a public authority such as the tribunal to safeguard life was not absolute.
The obligation should not impose an impossible or disproportionate burden on the authority and should recognise the interests of justice.
In all such inquiries, the victims' next of kin must be involved in the process to the extent necessary to safeguard their legitimate interests.
"The tribunal is obliged to ensure that the investigation is conducted so as to maintain public confidence in the State's adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts," he said.
So long as all reasonable steps were taken to avoid risk, there were circumstances in which a public authority was justified in requiring a witness to take a risk or endure reasonable fears in attending to give evidence.
The tribunal investigated the risk to the witnesses with the utmost care and concluded that their fears for their safety were not reasonable in view of the security precautions that could be put in place.
There had been no attack on any person attending court in Northern Ireland over the 30-year period of the Troubles, said Mr Clarke.
Mr Clarke said the court should be reluctant to interfere with the tribunal's conclusion that to move a substantial part of the inquiry away from Derry would seriously diminish, if not destroy, its chances of restoring public confidence.
"As the tribunal explained, the events of Bloody Sunday had their most serious and lasting effect on the people of Londonderry, and it is there that the grief and outrage that the events occasioned are centred," he added.
The tribunal had said that local people wanted to know how their relatives, friends and neighbours in their close-knit community came to be killed and injured on that day.
The evidence of soldier witnesses and those in positions of authority would be of the greatest interest to them.
Mr Clarke said the claim that this "public confidence" argument was not justified failed to recognise the importance of the appearance of impartiality and independence from the executive and the symbolic effect of the tribunal sitting in the very place where the killings occurred.
Mr Clarke also argued there was no substance in claims that witnesses would be prejudiced by having to give evidence in a hostile and intimidating environment.