Are Whitstable oysters tanking?

Whitstable is of course eager to make a song and dance about its status, with such events as the Whitstable Oyster Festival drawing crowds and publicity. Despite cancellation back in 2020, the festival is set to return once again in 2021. But what to do about the tonnes of oysters still in the tanks after a ban on exports to the EU?

Back in 2016, many of the criticisms of Brexit that are in the headlines today seemed obvious. There was excessive caution and fair warning towards what some of the potential costs might be. However, the fisherfolk were stalwarts behind Brexit sentiment.

The Common Fisheries Policy was a notably unpopular piece of EU legislation. In theory, it was designed to provide a level playing field for European fishing boats, governing which fleets can fish where and setting fishing quotas to preserve fish stocks. Overall, many fishermen grew resentful of what was perceived as just further EU restrictions on the British maritime industry.

A YouGov survey found that 72% of fishermen favoured a Leave vote, on condition that it involved an exodus from the Common Fisheries Policy. Another study found that, compared to the general public, fishermen considered their attitude towards the EU as overwhelmingly ‘very negative’.

Now, post-Brexit, there is a sense the industry has been betrayed. But how true is this? Has Brexit delivered what fishermen voted for, and is this just reality biting?

For a start, fishermen are caught in what is ultimately a battle that goes well beyond their industry. The maritime laws that govern the English Channel are indicative of the greater struggle and debate regarding territorial sovereignty that has underpinned Brexit from the start. Fishing is certainly not the dominant British industry – it trails far behind other sectors.

In 2016, Nick Clegg issued warnings regarding the Brexit threat to some businesses. Clegg warned that ‘European look-alikes’ will take over British specialist exports. Yet many, such as James Green of the Whitstable Oyster Fishery Company, said at the time that he believed Whitstable oysters will remain most desired and recognised. Or to be precise, ‘’Our oysters will remain desirable for another 200 years.”

But now in 2021, EU regulations prohibit the selling of live shellfish to European countries from class B waters of third countries. The polluted seawater around the Kent coast is class B, and the UK since Brexit, is now a third country. Therefore, the regulations now apply to Whitstable oysters, which can no longer be exported to the major buyers within the EU. This is yet another blow to the struggling industry in the wake of a decrease in demand resulting from the Covid-19 pandemic.

There is also an issue of processing the extra 100 tonnes of Oysters now remaining in the Whitstable Oyster Company’s tanks. They have nowhere to go and nothing to do but grow.

Bivalve processing

The crucial factor is that before Brexit, the live bivalve-molluscs, which include oysters, clams, cockles and mussels, were processed in mainland Europe in depuration facilities conveniently near the buyers of live oysters. France, for example, has over 1200 of such bivalve processing plants in keeping with the national taste for seafood.

Now the trucks carrying live bivalves are not even allowed to cross the Channel to reach these plants. The Department for Environment, Food and Rural Affairs says it is investigating, but that it is being met with further red tape. The Oyster industry concurs with Green saying that he hears it is like ‘talking to a brick wall.’

The processing of live bivalves was managed through EU health regulation. Many of the molluscs can ingest dangerous biotoxins and bacteria that require processing before being fit for human consumption.

What are known as ‘Class A’ waters are considered healthy and bivalves from such waters are fit for sale. A minority of live bivalves are sourced from ‘Class A’ waters (in Scotland), but bivalves which are sourced from so-called ‘Class B’ waters may contain the harmful toxins and must be processed.

Until 2020, the regulations applied only to wild bivalves, but new regulation in 2021 extended this to all bivalves, even those farmed or raised in tanks like the Whitstable oysters.

In a Parliamentary debate on 8 February, George Eustice, the DEFRA Minister responsible for the fishing industry, asserted that the UK negotiators had been assured in 2019 that the new EU regulations would apply to wild bivalves only, and that any ban would be temporary until the right certification process had been devised. He claimed that the new ban imposed in 2021 is illegal.

“The Commission now seems to be pointing to separate public health regulations, namely regulation 853/2004 and regulation 2019/628, and suggests that they are the reason for a prohibition on sale,” he said.

“Again, that is incorrect, because legislation is clear through article 12 of the Commission implementing regulation 2019/628, which makes it clear that it does not apply where the molluscs are exported to a depuration centre. That is because when they are sent to a depuration centre, they are not yet food for sale.

“Therefore, the reason given by the European Commission for this change in position is not consistent with the EU’s existing law. That is why we will continue to raise these issues with the Commission because under both the aquatic animal health regime and the public health regulations that the EU has cited, there is no legal justification for a bar on this trade.”

MPs from many constituencies with fishing businesses affected by this joined the debate. John Redwood suggested expanding UK purifying facilities. Others were concerned about getting a fair share of the UK government fisheries compensation fund of £23m for their constituents.

There was a recommendation to appeal to the head of the European Parliament’s fishery committee. This is a complex trade dispute of the sort that used to be solved by the European Court of Justice, but the UK Government has withdrawn from that, so there is no readily available arbitration panel.

The Trade and Cooperation Agreement of December 2020 (TCA) envisages two technical committees, one on sanitary and phytosanitary issues and another on fishing. But the TCA has not been ratified yet so these committees will not be functional for some time.

Still seeking a solution

Meanwhile, two months have gone by since that Parliamentary debate. DEFRA has engaged with the industry. Building bigger purification plants in the UK would not be a solution, because depuration reduces shelf life by one or two days, and this would not be acceptable to the EU customers.

The UK never built larger facilities, because 80% of bivalves were being exported and smaller tanks were enough for the UK market. Green clarified this point by saying that a depuration tank for the 20 tonnes of oysters he has waiting to export would need to be the size of a swimming pool, and he has neither the money nor space for that.

But one cannot help thinking that a way forward will be found; there are willing sellers and willing buyers. There are plentiful oysters in Whitstable and many hungry customers in French eateries wanting to order them (or there would be if France were not under strict lockdown).

Meanwhile, it is perhaps a patriotic duty to eat more oysters in England to help save the industry, except that if we all did then those extra purification tanks would need to be built this side of the Channel. Is the planning application to do this now going forward in Whitstable?