We hear a fair bit of gibberish about how Brexit has broken our constitution, about how our uncodified political system has been shown up as unfit for purpose. The stalemate between executive and legislature that our experiment with direct democracy has cast us into is portrayed as some sort of fatal constitutional death spiral. This sort of argument seems to be advanced by commentators who only a few years ago bemoaned the tendency for “elective dictatorship” in the British constitution, who complained that incomplete separation of powers and a strong executive made parliament unfit for purpose in a modern democracy. So, parliament is unfit for purpose if it cannot constrain the government, and it is unfit for purpose if it very much can constrain the government, as has been the case over Theresa May’s Brexit negotiations. That sounds like a “have your cake and eat it” argument to me – it must be the Liberal Democrats arguing it then.

In fact this crisis shows British democracy and the British parliament working rather well, in my view. There is certainly one hell of an active debate going on in there, and out there,and it is possible that the result will actually be rather good for Britain one way or another. But never mind that. My purpose in this blog post is to suggest that the empowerment of parliament, and the erosion of party discipline, may outlast the current crisis and imbue the British constitution with new norms and conventions. As a recent FT article put it:

‘A generation of MPs doesn’t know where the default setting is. They see the role of a backbench MP not as an extra, but a protagonist. They have been radicalisedand have already started to rebel against the party system. “The discipline has collapsed and I suspect it won’t come back after Brexit,” says [Labour Peer] Lord Wood.’

Time will tell whether party discipline is re-asserted once Brexit is out of the way, if it ever is. Brexit has always cut across party lines, which makes May’s attempt to whip it through like Margaret Thatcher with a one hundred-plus majority look all the more inept. It is possible that, with some sort of clean break from all this, politics will return to more traditional left-right division and party discipline will re-emerge. But it is equally possible that we may continue with a new convention – an expectation that governments and prime ministers do not necessarily get to pass legislation, but that this failure is not necessarily a matter of confidence in the government. Only the blocking of finance bills actually stops a government from governing. The blocking of other bills merely stops a government from legislating, and that is different.

The Fixed Term Parliament Act means that lame duck governments may be preserved for longer, unable to enact their manifestos. Partisan de-alignment and the erosion of the two party system – if these are permanent themes in British politics (and I have my doubts that they are) – may mean that minority governments, confidence and supply deals and coalitions become more standard features of British politics. MPs, campaigning increasingly through modern social media for their seats, and thus being far more capable of generating personal campaigns and support bases, will sense that they have a clear mandate independent from their central party platform and organisation. This will weaken the whips. We may even see a structural breakthrough of independent MPs who are aligned to no party, who obey no whip, and who hold the balance of power in the House of Commons. The new “Independent Group” around Chuka Umunna and Anna Soubry may indeed produce the “new type of politics” they claim to champion, if they explicitly choose not to become a party. We may see more temporary movements – like EnMarche in France and Momentum in Britain – that are related to but separate from fixed, institutionalised parties.Parliamentary arithmetic may come to resemble a shifting kaleidoscope of factions rather than organised and whipped parties of MPs in thrall to the government’s power of patronage.

That sounds terribly radical and new, but in fact it harks back to the 18th century, when there were no formal parties and when the balance of power in the House of Commons was held by a large bloc of “country gentlemen” who eschewed any fixed allegiance. MPs were highly independent, financially as well as politically. With just this sort of parliament in place in the mid-1780s the Prime Minister, William Pitt the Younger, failed to pass two key reforming measures through parliament. In fact, he suffered major defeats on both. These measures were: reform to the constituency boundaries and the franchise, and the normalisation of the Anglo-Irish relationship. Both were enormously contentious issues, the latter in particular probably being in its day even more emotive and constitutionally profound than Brexit. But these defeats did not stop Pitt becoming one of the longest serving PMs in British history, one who is regarded to this day as a political titan. His early parliamentary defeats did not bring down his government. I shall quote from former Foreign Secretary William Hague’s biography of Pitt to explain why this was the case:

‘In the eighteenth century the passing of legislation was not regarded as part of the fundamental business of government. Just because an MP supported a particular set of ministers in carrying on His Majesty’s Government did not mean that he would necessarily support them in changing the law. Thus a matter such as parliamentary reform was regarded as a question of individual opinion and conscience, rather as twenty-first-century MPs would regard a vote on capital punishment or abortion, not remotely as a question affecting confidence in the government.’

Brexit is just such an issue in our age, and I see no reason why voting against the government on this issue should bring it down – or even seriously damage it. May survived Corbyn’stabling of a vote of confidence, as if to demonstrate this. Parliament is now on the cusp of taking control of the Brexit process. Select Committees and backbench groupings are potentially about to start directing policy, not just scrutinising it. This tendency may not outlast Brexit, but the new-found independence of MPs very likely will. Thus we may have a new convention in our constitution, of routine defiance of the government whip; and if so, this will return a great deal of sovereignty to Parliament.

There are many things to admire about the eighteenth century – foppish clothing, powdered wigs, Mozart symphonies and duelling with rapiers, to name but a few. But not least of these is perhaps the idea that governments ought not to feel that, in order to survive, they have to drown us poor citizens in blizzards of legislation telling us what to do, how to behave, what to think, and what we can own or transact. Friedrich von Hayek, as a classical liberal, would doubtless approve.