Emmanuel Macron has made a tantalising constitutional offer to Brexit Britain, even if it is couched in vague language and has no official backing from the European Union's institutions.
He has revived François Mitterand’s plan at the end of the Cold War for a European Confederation. “Let us be clear, the EU cannot be the only means of structuring the European continent,” he told Euro-MPs this week.
Macron proposes a constellation of democratic and liberal states that wish to trade and cooperate on friendly terms without having to accept the full EU package, with its ever more powerful executive in Brussels, and with a supreme court in Luxembourg acquiring hegemonic jurisdiction.
What was deemed impossible during the bitter Brexit talks – and before that as the UK was dragged by perpetual treaty creep into a proto-superstate against its will – has suddenly become a fashionable possibility because of Vladimir Putin’s attempt to overthrow the European order by force.
The UK was told that there could be only a binary choice: either in (or almost in without voting rights, like Norway); or out, and little different from Vietnam, Brazil, or Madagascar. Put crudely, the Barnier line was that any form of bespoke arrangement was cakeism, a threat to the indivisible legal unity of the EU.
Mr Macron’s “European political community” is designed to tackle the conundrum of Ukraine, a disguised way to head off the fast-track EU accession of a country deemed too big and unruly to be digested.
It is a formula to park Georgia and Moldova in a halfway house for decades, and perhaps secretly also the EU candidate states of Serbia and the Western Balkans. Quai’ d’Orsay thinking is that EU enlargement has already gone far enough already.
The confederation raises obvious questions about Brexit. Mr Macron did not explicitly name the UK but said the arrangement should be open to “those countries which have left the European Union”, which is the same thing. He did not mean Greenland.
The idea clearly has a head of steam. Former Italian premier Enrico Letta proposed a confederation of 36 states in a paper last month, with the backing of Italy’s Mario Draghi.
Charles Grant from the Centre for European Reform says the plan has support from the EU’s President Charles Michel and the Council secretariat, though not from Commission officials, visceral foes of "variable geometry" and anything that departs from the uniform script.
“The move is highly significant. There is a strong desire for a rapprochement with the UK, and they might even be willing to rewrite the Protocol, if there is a different prime minister. Relations with Boris Johnson are now too toxic,” he said.
Some might note that such a confederation already exists. It is called the Council of Europe. It was founded in 1949 with help from Winston Churchill, with a Convention written by British lawyers that enshrined liberal principles, indisputably more liberal than the EU’s own rights Charter and Acquis. The EU has sought to emasculate the Council over the decades, and refuses to be bound by the European Convention on Human Rights. But let us not quibble.
The French president told voters before his re-election that he had learned hard lessons in office and would do things differently over the next five years. Perhaps this includes his choice – and it was a choice – to treat the UK as an enemy, something that no other EU leader has done since the Referendum.
The gesture is an olive branch from Paris and should be taken as such. It would be unwise for Downing Street to force a showdown over the Northern Irish Protocol at this juncture.
In part, it is a matter of chivalry. Such a demarche would be seen as an attempt to exploit the EU’s existential crisis on its Eastern border, one fast morphing into a recessionary shock. It would again poison relations just as the prospects of a better post-Brexit settlement are opening up.
Legislation to override the Protocol will be blocked for a year by the House of Lords in any case, rendering the gesture provocative to Brussels and Washington without being effective.
It makes more sense to keep rolling over the grace periods unilaterally on the shipment of goods to Ulster.
“This has been going on for a year, and with each passing week it gets harder for the EU to do anything about it. The UK can say that the Single Market hasn’t blown up, so what is your problem?” said Professor Anand Menon from King’s College London, head of the UK in a Changing Europe.
President Macron seems to be proposing the very relationship with Europe that middle Britain has long sought, whether moderate Remainers or moderate Brexiteers - and the line between them is an artifice of post-Referendum polemics.
“This new European organisation would offer democratic nations, which adhere to our core values, a new space for political cooperation on security, energy, transport, infrastructure investment and free movement of people, especially our young people,” he said.
Mr Macron’s wording implies giving Ukraine and others a higher degree of access to the EU single market than they already have. This necessarily reopens aspects of the EU-UK Trade and Cooperation Agreement.
The EU can change certain elements of the UK deal immediately, if it wants better ties. It has denied the UK mutual recognition for conformity assessment on products – the barebones courtesy offered to Canada and Australia. It has refused to reciprocate even on financial equivalence (itself very limited), withholding the cooperation accorded to New York or Singapore in areas such as derivatives. It offered China’s Communists better terms on financial services.
That Brexit deal is unlike anything that exists in international trade law. The EU aims to prevent future legal divergence on the grounds that this would be unfair competition. But competition is the lifeblood of the free market, and the root of rising living standards for three centuries. It does not flout WTO principles at all.
The EU hopes to do this by reaching into British domestic law in order to regulate how products are made, which is a radical break with WTO practice. It has a ‘rebalancing mechanism’ armed with hooks, all under pain of ‘cross-retaliation’ if the UK is deemed to have offended. There is a constant Sword of Damocles because the EU can shut down the whole accord at any time. Britain accepted such terms only under duress.
This punitive settlement has always been a risky strategy for the EU itself since it pushes the UK further into the US regulatory orbit, and may lead to a New York-London condominium over Western finance. Mr Macron knows that Paris has failed to carry away much of the City’s business, and he discovered in the AUKUS submarine deal that making sure Brexit “hurts” is a two-way street. Charm might take him further.
His confederation has not gone down well in Eastern Europe. Mr Macron exalted the courage of Ukraine, “already today at the heart of our Europe, of our family, or our union”, only then to deflate hopes by adding that it would probably be “several decades” before the country joins the EU.
Ultimately, Ukraine would not have a choice. A close confederation would at least be better than the status quo.
For Britain it is full of seductive possibilities, the answer for millions of us who want the sort of relationship with Europe that Canada has with the United States. It is not such a scandalous thing to ask after all.