The civil rights march on Bloody Sunday was not, in fact, illegal and the British armed forces had no legal power to arrest anyone on the march, the inquiry has been told.
In a lengthy written submission to the Saville tribunal, the organisers of the march, the Northern Ireland Civil Rights Association (NICRA), allege that the then Stormont administration failed to give proper consideration to the legal situation.
NICRA has asked the inquiry to invite the former attorney general to the Stormont government of 1972, Sir Basil Kelly, to make a statement about whether he was, at any time, consulted on the legal aspects of the march and, if so, what advice he gave.
The march held on January 30th, 1972, was organised primarily as a protest against internment, which had been introduced the previous August. The submission now made on behalf of those who were executive committee members of NICRA in 1972 says it has invariably, but wrongly, been assumed that the march was the subject of an order banning all processions and marches.
However, no copy of any relevant ministerial order has been uncovered, it points out, and no order was promulgated at the time.
In the absence of any formal instrument under the hand of the relevant minister (then the unionist politician, Mr John Taylor), no order was legally in force, NICRA argues. "The march . . . was not, in fact, banned, even if the citizenry of Derry thought that it was defying a ministerial order in joining the march."
The submission notes the inquiry's solicitors have acknowledged that every effort has been made to discover a copy of the order, without success. Although it was an executive act of the Stormont government, there is no record of it in the Public Records Office in Belfast.
There is also nothing in the archives of the Widgery tribunal to indicate that a ministerial order was produced to show that the march was illegal.
Sections of the Special Powers regulations conferring certain powers on members of the armed forces were under (ultimately successful) legal challenge in the courts at the time. In effect, the regulation in question was legally inoperative at the time, NICRA claims, and members of the armed forces had no power to arrest anyone on the march.
NICRA says Gen Robert Ford (commander of land forces, Northern Ireland) and those under his command, in consultation with senior RUC officers, should have been aware of the legal vulnerability of the ministerial ban on the march.
"The absence of any injunctive action tends . . . to support the view that the Minister of Home Affairs (represented by his junior minister, Mr Taylor) was tacitly waiving enforcement of the ban in its absolute form."
Sketching the political background to the civil rights campaign, the submission says that NICRA sought social, economic and political justice in a non-violent, non-sectarian manner.
It criticises the comment in the Widgery report that there would have been no deaths "if those who organised the illegal march had not thereby created a highly dangerous situation in which a clash between demonstrators and the security forces was almost inevitable".
It says internment in the North was the spur to more protests: "The streets were the court of last resort for NICRA and the gateway to international opinion via media coverage. There remained no legitimate means of protest; protest had been stifled by legislative and executive power."