“DEFRA says get over it”: Brexit threatens to wreck Devon mussel business and DEFRA don’t much care

The Holly Mai, the Offshore Shellfish company’s work boat. By kind permission.

“DEFRA says get over it”, according to Nicki Holmyard, talking to West Country Bylines, and describing the response from the department for environment, food and rural affairs since live shellfish exports to the EU collapsed in January 2021. Nicki is Communications Director of the Brixham-based aquaculture firm Offshore Shellfish Ltd, which – in common with other exporters experiencing similar problems – has now been offered help: a one-hour slot, (yes, one hour), with a DEFRA policy advisor to ‘develop a new business model’. 

How has this innovative, successful, west country business been forced to stop exporting 95 per cent of its ‘farmed’ mussels to the EU? Having long had doubts about the advice they were being given by DEFRA, in January 2021 the firm sent two shipments for grading and purification – to ‘test the waters’ as they put it – to the depuration plant in the Netherlands which they have always used. Owing to new paperwork and regulatory issues ‒ which were never a problem before Brexit ‒ the first shipment took 48 hours instead of the usual 12 (bear in mind that these are live animals). The second took 24 hours and the situation seemed hopeful: until a phone call which, they say,changed everything, and put an immediate stop to our trade. Indefinitely…”

Offshore Shellfish Ltd is a family business, run by John and Nicki Holmyard, (who both, incidentally, voted ‘remain’ in the referendum) which employs 16 people and two part-timers. Their business is aquaculture: farming organic mussels grown on ropes anchored to the sea bed on three sites in Lyme Bay covering 15 sq km. John Holmyard has over 30 years’ experience in aquaculture, having set up the business first in Scotland. Since moving south in 2014 he has invested heavily in the company, which has reached a third of its permitted capacity of 10,000 tonnes of high quality, sustainably-farmed mussels each year. Holmyard is anxious to continue development of the farm, but only if the EU trade can be reinstated.

John’s approach has been scientific from the off: he’s studied mussels and their needs for many years and has established that when grown in this way, the mussels help create a distinct underwater ‘ecosphere’ (as studied by Plymouth University), which in turn attracts many other marine species. The mussel shells act as highly effective carbon ‘sinks, whilst the animals themselves, when cooked, are ‘superfoods’, high in protein and containing valuable minerals.

Mussels

The business has a very strong emphasis on sustainability: the mussels are not artificially fed but, once ‘seeded’ in biodegradable sleeves on to the ropes, are basically left to grow at their natural pace until harvested. The company has won prestigious awards for its high environmental standards and organic, sustainable practices, and was the first mussel farm in Europe to obtain certification by BAP, a worldwide aquaculture certification programme which addresses environmental, social, food safety and animal health and welfare issues.

So what’s the problem now?

After the referendum, the Holmyards, along with others in the industry, repeatedly voiced their concerns to DEFRA that existing EU rules might not permit the continued export of unpurified LBMs (live bivalve molluscs, including mussels) if the UK became a ‘third country’ for trading purposes. DEFRA officials, however, repeatedly gave verbal and written assurances to those in the aquaculture industry that they would be able to continue exporting to the EU, with few – if any – bureaucratic obstacles, even in the event of a ‘no-deal’ Brexit.

EU/UK correspondence now shows, however, that neither DEFRA nor its secretary of state George Eustice seem ever to have understood basic industry terms, or the impact which a hard or no-deal Brexit would have on exporters like Offshore Shellfish Ltd.

For example, there was no apparent comprehension of the vital regulatory difference between wild and farmed shellfish, nor of the effect of the existing classification of waters into specific Grades, which ultimately determine how the animals must be treated for human consumption. (Grade A waters, in layman’s terms, basically contain fewer potential contaminants than Grade B, and the EU does not require LBMs from Grade A waters, for example, to undergo purification before export). Furthermore, it appears that no-one in DEFRA understands – perhaps even now – the difference between shellfish (prawns, crabs, lobsters etc) and bi-valve molluscs (clams, oysters, scallops and mussels): a difference fundamental to the possible impact of EU requirements on a third country, as the UK now is.

Shifting the blame

Once the extent of the collapse in shellfish and LBM exports became clear and it was seen that post-Brexit export arrangements had not been properly negotiated with the EU, DEFRA suggested that this was owing to revised EU barriers: it was all the EU’s fault for changing the rules. Or if not the EU’s fault, then it must be due to lack of demand in Europe during the pandemic. Or both. Neither is true, but it seems to be one-time UKIP MEP candidate Eustice’s answer to the problem.

Nicki Holmyard – indeed the whole company – can see the facts for what they are.  They knew there could be serious problems if a deal was not put in place which took proper account of the EU regulations; but they were assured, again and again, that they would be able to continue exporting without real difficulty. They called a halt on their expansion plans for the business two years ago because, Nicki says, they did “not necessarily have that much confidence in the government” and its promises: amongst them Boris Johnson’s worthless assurances, which are “now coming home to roost”.

Unloading harvested mussels

The loss which they had always feared – of a huge proportion of their exports (we British don’t eat nearly enough mussels to compensate, when compared with our European neighbours) has led to the firm now considering taking legal action against the government for its abysmal dereliction of responsibility. It is clear that DEFRA simply failed to comprehend that third country status for the UK would create huge new hurdles for exporters to the EU and took no steps to prepare for this. In response to a question from Totnes MP Anthony Mangnall, DEFRA minister Victoria “Nativity Trail” Prentis told Parliament on 4 March that “there is no justification for the European Commission to ban our molluscs from class B waters”.

This seems directly to contradict evidence revealed by EU-UK correspondence; but the deliberate use of the word “ban”, much favoured by the Daily Express and the Daily Mail, seems to have gained a life of its own and is now repeated ad infinitum in mainstream media reports. It gives an entirely misleading impression: it is not a ban, but simply the imposition of rules (which the UK helped to draw up), to which the UK is now subject, as a third country outside the single market and customs union of the EU. Holmyards – and other producers – always knew about these rules: it is a tragedy for them and for many other businesses that this government either did not know about them or ignored them, perhaps assuming that because we are British, the rules would not be applied.

Offshore Shellfish Ltd and others have repeatedly asked for confirmation that DEFRA obtained independent expert advice on the implications of the UK’s departure from the EU as a third country. To date, no evidence has been provided that such advice was obtained.

The firm wrote to DEFRA on 25 March, pointing out that the responsibility for this débacle lies with DEFRA, not with the EU, and that ministers had given them false hope. The company’s solicitor has also said that if Offshore Shellfish Ltd cannot resume trading by September 2021, then it may be necessary to dismantle the mussel farm in Lyme Bay, which would result in a claim for substantial damages. At the time of writing, the firm had received no reply from DEFRA but it has already spent significant sums on obtaining legal advice. As reported in the Guardian, separate legal advice is being sought by around 20 other producers, alleging government “negligence and maladministration”, which may lead to a class action – including from Offshore Shellfish Ltd – for compensation.

Offshore Shellfish Ltd cannot just ‘develop a new business model’, as DEFRA has suggested. Even if there were sufficient demand for its mussels in the UK, Nicki Holmyard told West Country Bylines that the firm would require much larger premises and facilities than it has now. Interestingly, she said too that they have always experienced difficulties when supplying to the UK market: late payment being the worst, but also issues over the orders or the quality of the mussels. None of this occurred with their EU-based customers, with whom they have dealt very successfully for many years. She also went on to say that “the EU enables their industries: all we get is a block”. 

Ms Holmyard insists that the government must now “stop calling the EU a liar” and try to negotiate a way forward; although she points out that this may not be easy, because the Covid-19 ‘vaccine wars’, the developing unrest in Northern Ireland – indeed, the basic problem of the UK having left the EU – are all issues which cloud the relationship; and, even if the impasse over exports could be resolved, it remains the fact that regulatory business within the EU can be very slow.

The omens are not particularly hopeful, in the short term at least: it seems the government is “disappointed” by the shellfish firms’ stance. It is even considering taking legal action itself: against the EU for “changing the law and blocking the trade”. This could be difficult, given that the EU Parliament and Council have not yet ratified the Withdrawal Agreement (owing to Johnson’s being considered to have broken international law a second time, over the checks on goods between Northern Ireland and the rest of the UK). Until ratification has taken place there is no formal basis for arbitration. The options for swift recourse seem to be limited. Let’s hope that Offshore Shellfish Ltd, and other previously profitable businesses like it, can hold on that long.

Superfood!

Our thanks to Nicki Holmyard for her assistance with this article, and our best wishes to Offshore Shellfish Ltd.

All photos © and reproduced by kind permission of Offshore Shellfish Ltd.