A few more things..

Some intriguing developments on the Syria issue over the last few days.

1-      It would appear Jim Murphy reads what I write, and wrote what I had already written. Even if as shadow-defence secretary he couldn’t bring himself to lay any blame on the superfluous Labour amendment.  But in spite of this, and further damning evidence of Assad’s responsibility for last week’s chemical strike, a second vote on military action remains officially off the agenda.

2-      Meanwhile, the Labour leadership has finally recognised the situation for what it is:  “The political reality is that the prime minister has said Britain will not take part in military action. Everyone is having to work within that context.” But why Miliband feels more constrained by “political reality” than actual reality, the reality of the suffering of the people of Syria or the reality of the democratic process is not entirely clear. Even less clear is why the leader of the opposition is so determined to submit to rather than shape political consensus – a cynic might suggest that it’s purely the opinion polls which are pushing Labour to toe the non-Tomahawk line. We can only hope that before too long rather than playing politics at least one party may try and show some gutsy moral leadership. Given its last minute sabotage of the government motion last week, and the understandable mistrust the prime minister now has of the opposition on this issue, the ball seems firmly and fairly in Labour’s court.

3-      But at least both sides seem to vaguely agree on something. If there is a “very significant” change in the situation, then there could be another vote. What this actually means is rather uncertain. But I wouldn’t bet against a swift revisiting of the issue if omens from France and the US look promising. The views of the electorate won’t change, but the Coalition and opposition may well be happy to split the difference.

Oh, and the world’s oldest (written) constitutional democracy has decided to follow our lead and consult with Congress. Let’s just hope they make a better job of it.

An editorial in the Guardian today hails last night’s result in Parliament as a triumph for the legislative over the executive. It praises a “well-played” Labour counter strategy in the debate, which ultimately led to a “humiliation” for David Cameron. But none of this tells us what really happened.

As far as strategy goes, though Labour’s initial pressure on the Prime Minister in the days leading up to the vote produced a much more sensible and measured government motion, at the end of the day Miliband as much as Cameron wanted the decision on military action left open – simply demanding a marginally more rigorous set of preconditions before military action could be again considered. In the end, neither side got what it wanted. And as for the supposed humiliation of the Prime Minister, the Guardian seems to forget the relative novelty of parliamentary consultation in circumstances where until recently prerogative powers were used; the reason underlying Miliband’s closing closing coup de grace. Those who claim to support parliamentary democracy might do well to praise rather than mock the Prime Minister’s actions,  which included promising not just one but two votes in Parliament on the matter of intervention, as well as accepting with surprising grace the outcome of the debate and explicitly rejecting any unilateral use of the prerogative.

But what of the supposed victory for Parliament, and the legislative checking of executive power? In fact far from showing Parliament at its best, what transpired was embarrassing, highlighting the damage which can be done when the weaknesses of Parliamentary process combine with lax and superficial debate.

On the procedure point, the holding of two divisions over both the main motion and the Labour amendment, coupled with three line whipping for each, meant the actual will of Parliament was definitely not expressed in the end result. This was an absurd situation brought about by a Labour amendment which implied that in principle Labour was in favour of military action if the right conditions were met – essentially in agreement with the government motion. And which differed only rather marginally in the pre-conditions it set out for consideration of military action – this being the point of difference with the government motion.

The truth is that if you take the people who were in favour of the Labour amendment, and then add those who voted only for the government motion, then you find an overwhelming majority in favour of leaving the question on military action to a second vote – leaving the option open. The only thing that really divided the majority of members was the miniscule difference between Tory motion and Labour amendment, a vanishingly small excuse for turning our backs on the thousands of victims of these attacks.

Far from a triumph of the legislature then, actually its views were not accurately represented at all, with the only victors being the small minority of MPs who voted against both original motion and amendment.

But Parliament also failed substantively in the terms of its debate. As the Prime Minister made clear, the “well of public opinion was well and truly poisoned by Iraq”. True – but Iraq also seems to have poisoned the minds of MPs, for whom the mere mention of that place was enough to send them scampering into the No lobby.

If Iraq had any relevance to the debate last night, it was to show how lessons had been learnt. There was no tokenistic consulting of Parliament on the eve of invasion, procured by shadowy intelligence and government manipulation  – Parliament was to have the final say on both the preconditions for consideration of military action, and military action itself. Similarly, the Prime Minister, as has John Kerry today, made deliberate use of publicly available evidence, including a JIC report, all of which combined made a strong case for Assad’s connection to the chemical strike. These conclusions have been enormously strengthened by US disclosures today. As any lawyer knows, there is no such thing as absolute proof – we have to draw conclusions based on evidence. Far from being easily contestable and based on exaggeration, hearsay or unreliable witnesses as in the case of the Iraq War, evidence presented on Syria allows us to form these strong conclusions with confidence.

But perhaps the biggest difference with Iraq is the nature of the action proposed. Not only was this motion was only detailing the necessary steps to be taken before a vote on military action could be put, the military action itself would almost certainly have involved no boots on the ground, and have been strictly time limited. There simply is no comparison – at the very least MPs should have taken the eminently sensible step of keeping all options open until the time when (and if) a strike was contemplated, and properly considered the proposals for such a strike at that time.

The only conclusion we can draw is that it was neither the legislative nor the executive branches which won last night- only the minority who wanted to wash their hands of the Syrian problem without even bothering to hear any more of the evidence, and who had made up their mind on military action before its details had even been drawn up. It would be wrong to criticise wholesale the debate yesterday, which did contain flashes of extremely impressive and insightful argument for both sides. But this was clearly overshadowed by a regrettable failure of process and lazy argument, forcing the UK not only to abandon any future military action, but also to give up any significant role in the political debate in coming weeks. There are many good arguments for not intervening militarily in Syria, but no good arguments for giving in now, and the decision clearly strikes a devastating and underappreciated blow to the UK’s moral authority overseas.

The story of David Miranda will doubtless run and run, bringing together the hot topic of government surveillance programmes with the simmering unease over the increasingly extensive use of anti-terrorism powers in the UK.  But already debates sparked by Miranda’s detention are getting messy, not helped by the making of some crisp – but distracting – legal distinctions. The story, in short, involves the detention of David Miranda, the Brazilian partner of Guardian journalist Glenn Greenwald,  under Schedule 7 of the Terrorism Act, which gives broad powers to the security services to detain persons travelling to the UK at the border for a period of up to 9 hours. The length of Miranda’s detention was somewhat unusual, and it would seem his electronic devices were also confiscated – but so far so legal.

What is  more dubious is the questioning Miranda was subjected to. The Act explicitly states that:

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)

Section 40(1)(b) covering someone who:

is or has been concerned in the commission, preparation or instigation of acts of terrorism.

As pointed out, It seems unlikely that an interrogation focussing on Miranda’s partner, Glenn Greenwald, the Guardian investigations and the Snowden leaks, would meet an acceptable reading of this section, and depriving a person of their liberty for the purposes of gathering general intelligence is not looked upon kindly by the European Court.

But aside from the questioning, was it wrong to stop Miranda in the first place?  Rather surprisingly the Act (Schedule 7 – 2(4)) allows for selection for detention under Schedule 7, even when there is no reasonable suspicion that the detainee falls under section 40(1)(b) – i.e. is suspected of involvement in the instigation, preparation or commission of acts of terrorism.

An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b)

So they can do what they like? Not quite.

The Home Office provide a Code of Conduct which stresses that the powers must be used “proportionately”, “reasonably” and “with respect”, amongst other things. Ultimately, the way in which people are selected for stops must be “informed”, taking into account the threat posed by terrorist groups, including assessing patterns of travel and the documentation which terrorists might use, for example.

No doubt this may lead to legitimate searches of every 20th or 50th or 100th person coming off a plane, or everyone carrying a particular type of passport, or a variety of other reasons. But clearly Miranda was not stopped under one of these “ordinary” uses of the power. He did not get unlucky, was not carrying suspect documents, travelling to or from anywhere suspicious etc. Rather, Miranda as an individual was likely put on a watch-list, and personally marked as a target before his flight for Heathrow had even left the tarmac.

So we have to ask, under what circumstances would the security services be justified in selecting Miranda by name under Schedule 7? Looking through the Code of Practice only one seems remotely feasible- the actual knowledge or suspicion that Miranda has been in some way connected with acts of terrorism or the supporters or sponsors of those who are.

In short, what’s important to recognise about Schedule 7 is that direct suspicion of some relation to terrorism seems to be a sufficient, but not necessary pre-requisite for selection; the post-Miranda debate over the Schedule needs to keep this particular distinction crystal clear. On the one hand, there will no doubt be a renewed debate over the breadth of the powers in the section, and the appropriateness of selecting people for questioning without suspecting them of terrorism related activity under 40(1)(b) as currently allowed under the Act. Should it be necessary to have actual suspicion to stop individuals?

But the detention of Miranda raises a totally separate issue. Picked out by name, and seemingly not falling into any other relevant category in the Code of Practice, his selection for questioning must have been one of those few cases where Schedule 7 is employed based on a more direct suspicion of involvement with terrorism to comply with the Act. To justify his detention, the security services must therefore not only demonstrate the propriety of his interrogation and lengthy detention, but also that his association with Greenwald and Poitras, and/or what they knew about the data he was carrying marked him out as a person potentially falling under 40(1)(b) of the Act – this being the reason for his initial selection for questioning.

We haven’t been told why Miranda was stopped – we may not need to be. After whittling away all other options, the circumstances of his selection for detention can only be explained by a suspicion he was somehow implicated in terrorism. Taking that line gives the people who detained Miranda far less room to wriggle.