Ignoring the headlines for a moment, the case of Miller vs. College of Policing actually highlights a trickier problem in the governance of the United Kingdom. Mr. Miller succeeded in his claim that the actions of the police were excessive — or in other less polite terms, oppressive — but failed to convince the court that the “College of Policing” guidance they were following was itself wrong. Quite aside from whether the guidance is right or wrong, this is plainly the correct outcome, but it isn’t a good one.

For the police to visit the place of work of a “suspect” accused, as the police freely admitted, of a “non-crime” is plainly oppressive. However, the police were in an impossible situation and would have been criticised no less forcefully for inaction too. While I am entirely unclear if the “Hate Crime Operational Guidance” is a Code of Practice under section 39A of the Police Act 1996, it stands to reason that there is some force in it, and the police should and will follow it. I suspect, since it doesn’t seem to have been approved by the Secretary of State as codes of practice are required to be, that it isn’t. But nothing here greatly turns on that distinction.

Plainly a citizen can challenge this action of the police in court, since mere reliance on College of Policing guidelines does not provide any sort of defence to the usual torts and the like. And it is also surely right, as Mr Justice Knowles admirably did, for the court to balance the aims of the police against the constitutional protections of the citizen. Knowles then concluded — as one would like to hope everyone would feel — that investigating someone at their place of work for conduct which the police know does not amount to any offence known to law is by its very nature excessive and could have a chilling effect on speech.

So far so good, the police lost. But if this is the result of the guidelines, why are they themselves not being struck down? We should understand why we really shouldn’t want the courts to be the principal way the guidance produced by the College is scrutinised. Note that the test (was the guidance produced for a legitimate purpose and was it disproportionate?) was not met. It is not as well known as it should be that the bar to succeed in a judicial review is exactingly high, and rightly so.

The problem is that the courts are simply the wrong forum to check and scrutinise the quasi-legislative actions of quangos. All the more so when the topic is one fraught with ethical and moral considerations. This should be the domain of the Parliament. But, equally, Parliament should not be hiving off the responsibility to make these quasi-legislative decisions to other public bodies in the first place either — in much the same vein as Parliament should not be establishing “Citizens’ Assemblies” to decide things. We elect MPs to make these decisions not to dodge them.

So, if it is desired to have guidance requiring the investigation of “non-crimes”, with all the concomitant police activity that comes with that, Parliament should be the one to decide it. MPs can then weigh the value of devoting resources to this activity versus another; and can weigh the constitutional effects of it against the status quo. And, unlike a quango (and unlike the judiciary) MPs will have to defend their decisions in this to their electors once a quinquennium or so.

MPs have decided they want a greater control over agricultural welfare than on how the police investigate crimes