Ascribing sentience to fish: potential policy implications

6. Animal welfare legislation and regulation relevant to the welfare of fish, as sentient beings

There is nothing novel about policy makers having regard to the treatment of fish. At the beginning of the twentieth century, Parliament recognised that fish have the capacity to feel pain and protected them accordingly. The Protection of Animals (Scotland) Act 1912 made it an offence of cruelty wantonly or unreasonably to do or omit to do any act which caused unnecessary suffering to either a “domestic” or “captive” animal. The term “captive animal” applied to “any animal (not being a domestic animal) of whatsoever kind or species, and whether a quadruped or not, including any bird, fish, or reptile, which is in captivity, or confinement” (ss. 1(1)(a), 13(a)(c)). This legislation was repealed in 2006 and replaced by the Animal Health and Welfare (Scotland) Act 2006, which applies, inter alia, to “a vertebrate other than man”, which is “under the control of man on a permanent or temporary basis or not living in a wild state”. Not only does it remain an offence to cause such an animal unnecessary suffering, but since 2006, any person who assumes responsibility for it – that is to say the owner and any other person who is permanently or temporarily responsible for the animal – is additionally required to ‘take such steps as are reasonable in the circumstances’ to ensure that its needs ‘are met to the extent required by good practice’ (ss. 16(1), 17(1)(b)(c), 18, 19, 24). More recently, the Westminster Parliament has – in a legislative provision which applies throughout the UK – formally recognised that vertebrates (which includes fish) are “sentient beings” (Animal Welfare (Sentience) Act 2022).

To this extent, general legislative protection for fish has followed the science by reflecting our developing understanding of their needs and capacities: from cruelty to welfare to sentience.

However, there is a range of legislative anomalies and inconsistences in relation to fish arising from an apparent disregard of the relevant scientific evidence as to their sentience, resulting in a significantly lower standard of protection compared to that afforded to other vertebrates.

We describe below, in chronological order, examples of legislation affecting fish. The purpose of this review is intended to highlight the issue, and it is not intended to be comprehensive. There are legislative provisions relating to aquaculture and fisheries that are not included in this review. It is also recognised some policy areas are reserved to Westminster under the Scotland Act 1998 and are therefore outwith the competence of the Scottish Parliament, such as regulation of the veterinary profession, scientific procedures on live animals and veterinary medicinal products.

Veterinary Surgeons Act 1966

The Veterinary Surgeons Act provides for the management and regulation of the veterinary profession. Section 27(1) provides that, ‘except so far as the context otherwise requires’ the term ‘animals’ includes birds and reptiles, but does not mention fish, amphibians or invertebrates. In this context it could be assumed that the term ‘animal’ referred to mammals, with additional explicit provision that birds and reptiles are also included. Such an interpretation would imply that a lay person may lawfully conduct procedures on fish which only a veterinary surgeon may undertake on mammals, birds and reptiles.

The British Veterinary Association (BVA) has recently highlighted this as a concern, saying, ‘Defining the term appropriately in the Veterinary Surgeons Act would help to protect the welfare of farmed fish and ensure the relationship between vets and fish is not open to interpretation’^[106].

Wildlife and Countryside Act 1981

The Wildlife and Countryside Act is the principal piece of UK conservation legislation, originally introduced to implement the European Directive of 1979 as amended in 2009 on the conservation of wild birds and the Bern Convention on the conservation of wildlife and habitats. It has been significantly amended and supplemented over the years, resulting in an extremely complex legislative regime, with different provisions applying in Scotland, England, and Wales. Section 27 of the Act defines ‘wild animal’ as ‘any animal (other than a bird) which is or (before it was killed or taken) was living wild’. Three species of fish (basking shark (Cetorhinus maximus), vendace (Coregonus albula) and powan (C. lavaretus)) receive full protection under Schedule 5 of the Act, making it an offence to intentionally or recklessly kill, injure or take these fish, to possess or sell them and intentionally or recklessly to disturb or harass them. Two more species (allis shad (Alosa alosa) and twaite shad (A. fallax)) receive partial protection, regulating how they may be killed or taken.

More species are protected under Schedule 3 of the Conservation and Natural Habitats (Scotland) Regulations 1994 (as amended), making it an offence to use certain methods to catch or take these fish in freshwater. However, these provisions are principally for the purpose of conservation.

Zoo Licensing Act 1981

The Zoo Licensing Act provides for the licensing of zoos by local authorities in England, Scotland and Wales. Section 1(2) defines a zoo as ‘an establishment where wild animals (as defined by section 21) are kept for exhibition to the public otherwise than for purposes of a circus (as so defined) and otherwise than in a pet shop (as so defined)’. Section 21 provides that ‘“animals” means animals of the classes Mammalia, Aves, Reptilia, Amphibia, Pisces and Insecta and any other multicellular organism that is not a plant or a fungus and “wild animals” means animals not normally domesticated in Great Britain’. Fish are thereby included within the scope of the Act, although the taxonomy may need revision.

Section 9 provides for the Secretary of State to issue standards of modern zoo practice, which zoo inspectors are expected to apply. The current standards date from 2012, although they are currently undergoing a lengthy revision process. The current standards include specific provisions for fish, such as facilities for isolation and treatment, and systems for moving fish into treatment tanks, and a requirement for veterinary surgeons to be familiar with current practice in the care of fish, including specialist practice. Welfare is a particular focus of the standards.

Animals (Scientific Procedures) Act 1986

The Animals (Scientific Procedures) Act provides for the protection of animals used for experimental or other scientific purposes, including specification of appropriate methods of humane killing (Schedule 1). Section 1(1) defines ‘a protected animal’ for the purposes of the Act as ‘any living vertebrate other than man and any living cephalopod’. Both adult and larval forms of fish, once they are capable of feeding independently, are protected.

Zebrafish (Danio rerio) are included on the list of animals whose use in a regulated procedure requires a licence (Schedule 2, paragraph 2B). This is the main species used in UK scientific procedures, with estimated annual numbers used being in the hundreds of thousands.

It is understood that most experiments on zebrafish, which involve embryonic and early larval (less than 6 days post-hatching) stages, would not be covered and reported under the Act. Other practices that do not require reporting in the annual Home Office statistics include the humane killing of zebrafish by an approved method, to obtain tissues, organs, sperm or eggs; and the use of zebrafish in breeding programmes (unless they are genetically modified).

Animal Health and Welfare (Scotland) Act 2006

The Animal Health and Welfare (Scotland) Act 2006 is the overarching legislation protecting animal welfare in Scotland.

Section 16(1) of the Act defines ‘animal’ as ‘a vertebrate other than man’, meaning that in general terms the Act does apply to fish. However, only farmed fish and ornamental (pet) fish receive the same protection as other vertebrates. One measure of particular relevance to fish welfare is the prohibition at s.31 on giving animals as prizes, which has had the effect of ending the use of goldfish as fairground prizes.

Section 17(1)(c) excludes animals living in a wild state, but a non-domesticated animal falls within the scope of the Act, if it is ‘under the control of man on a permanent or temporary basis’ (s.17(1)(b). However, s.47(b) excludes ‘anything which occurs in the normal course of fishing’. This means that while wild fish captured in the course of fishing demonstrably come under the control of man, they do not receive protection under the Act equivalent to that afforded other captured wild vertebrates: it is not an offence to cause them unnecessary suffering and there is no requirement to have any regard to their welfare.

Scottish Government guidance clarifies that ‘fish on fishing boats are not covered under the Act, but the welfare of fish transported after landing is covered’.

Welfare of Animals (Transport) (Scotland) Regulations 2006

The Welfare of Animals (Transport) (Scotland) Regulations implement Council Regulation (EC) No 1/2005, which applies to the transport of live vertebrate animals within the European Community, covering the transport of mammals, birds, reptiles, amphibians and fish. The Regulation became part of assimilated EU law following the withdrawal of the UK from the European Union.

There are no specific requirements for the transport of fish, but certain provisions of the Regulation apply to all vertebrate species. Among other things, these include training and competence requirements for anyone engaged in the handling and transport of fish, minimising journey length and meeting their needs during the journey. Fish must be fit to undertake the journey.

The means of transport/container used must be designed, constructed, maintained and operated so as to avoid injury and suffering, and ensure the safety of fish. Sufficient space must be provided for fish appropriate to their intended journey.

The welfare of fish must not be compromised by insufficient coordination of the different parts of the journey, and weather conditions must be taken into account.

Feed must be offered to fish at suitable intervals and must be appropriate in quality and quantity for the species and size. The water may need to be changed, if appropriate (but only at an approved water changing station).

If fish fall ill, or are injured during transportation, action should be taken to prevent further suffering.

Anyone transporting animals on any length of journey must ensure that the animals are fit to travel and will remain in a fit state throughout the journey. The means of transport and transport practices must comply with the requirements of the Regulation and all animals must be accompanied by an Animal Transport Certificate (ATC)^[107].

For fish transported over 65km, the transporter must also hold a valid Transporter Authorisation issued by Animal Health (formerly the State Veterinary Service).

However, there is no requirement for drivers and/or attendants to hold a valid Certificate of Competence, although this is required for the transportation of other vertebrates. Road vehicles that carry farmed fish in containers are not required to be inspected and certified. Other means of transporting fish (e.g., wellboats, helicopters) are also exempt from the requirement to be inspected and certified^[107].

In December 2023, the European Commission published proposals for reform of EU animal welfare rules during transport, which will apply to the UK as an importer and exporter. The proposal states that fish will be within the scope of the new Regulation, but ornamental fish will be excluded as they are ‘usually transported in small boxes by express couriers in bags of water especially adapted to their needs and the duration of the journey is usually less than 24 hours. Therefore, the transport of ornamental fish rarely represents a major risk for animal welfare and should be excluded from the scope of this Regulation.’

Specific provisions for fishes, cephalopods and decapod crustaceans are to be set and updated based on new science when the relevant opinions of the European Food Safety Authority (EFSA) are available^[108].

Welfare of Animals at the Time of Killing Regulations (Scotland) 2012

The Welfare of Animals at the Time of Killing Regulations make provision in Scotland for the implementation of Council Regulation (EC) No 1099/2009 (‘the Regulation’), which introduces welfare rules for the killing or slaughter of animals kept for the production of food and products such as fur and leather. Given that farmed fish are reared for food, it might be assumed that fish slaughter is included, and as far as the key principles are concerned, that is the case^[109]. Farmed fish are covered by Article 3(1) of Regulation (EC) No. 1099/2009, which sets out general requirements for animals to be spared avoidable pain, distress or suffering during killing and related operations.

However, the Regulation contains no further detail, stating, ‘Recommendations on farm fish are not included in this Regulation because there is a need for further scientific opinion and economic evaluation in this field.’ (Preamble, paragraph 6). Instead, the Regulation recommends further work on fish slaughter:

‘Fish present substantial physiological differences from terrestrial animals and farmed fish are slaughtered and killed in a very different context, in particular as regards the inspection process. Furthermore, research on the stunning of fish is far less developed than for other farmed species. Separate standards should be established on the protection of fish at killing. Therefore, provisions applicable to fish should, at present, be limited to the key principle. Further initiatives by the Community should be based on a scientific risk assessment for the slaughter and killing of fish performed by EFSA and taking into account the social, economic and administrative implications.’ (Preamble, paragraph 11)

This anomaly has also been highlighted by the BVA:

‘[…] there is currently no detailed legislation to protect the welfare of farmed finfish at slaughter, with provisions for farmed finfish in UK and EU legislation limited to key principles, as opposed to detailed protections. Given the number of fish harvested in UK aquaculture each year, the UK Governments should introduce specific legislative protections for the welfare of farmed fin fish at the time of killing to reinforce existing good practice by the aquaculture industry.’^[106]

In 2014, the Farm Animal Welfare Committee (FAWC) (now the Animal Welfare Committee (AWC)) provided advice to UK governments on the principles to be applied to farmed fish welfare at killing, as well as related matters including an assessment of the impact on fish welfare of stunning and slaughter methods, which included recommendations to improve the welfare of farmed fish at the time of killing.

In 2020, AWC was asked to update its advice to aid the government and the devolved administrations in their consideration of detailed rules for the welfare of farmed fish at the time of killing. AWC revisited its 2014 Opinion and reiterated its principles. These were:

• All personnel involved with slaughter or killing of animals have a duty of care and must be trained and competent;
• Only those animals that are fit and healthy should be caught, loaded and transported to the slaughter site;
• Any handling of animals prior to slaughter or killing must be done with consideration for the animals’ welfare;
• In the slaughter facility, only equipment that is fit for the purpose must be used;
• Prior to killing an animal, it must either be rendered unconscious and insensible to pain instantaneously or unconsciousness must be induced without pain or distress; and
• Animals must not recover consciousness before death ensues.

Full details of the recommendations are contained in the report Animal Welfare Committee (AWC): update to the 2014 FAWC opinion on the welfare of farmed fish at the time of killing.^[110]

Veterinary Medicines Regulations 2013

The Veterinary Medicines Regulations implement the Veterinary Medicinal Products Directive 2001/82/EC (as amended) in the UK. They set out controls on the marketing, manufacture, distribution, possession, and administration of veterinary medicines and medicated feed in the UK. Section 2(2) of the Regulations provides that ‘animal’ means all animals other than man and includes birds, reptiles, fishes, molluscs, crustacea and bees. The BVA has recommended that this definition be adopted for use in the Veterinary Surgeons Act 1966^[106].

Mandatory Use of Closed-Circuit Television in Slaughterhouses (Scotland) Regulations 2020

The Mandatory Use of Closed-Circuit Television Regulations improve oversight of slaughterhouses in Scotland, but they do not cover farmed fish slaughter premises. However, as noted by the Animal Welfare Committee (AWC), salmon processors and larger trout processing premises generally have CCTV present as a requirement of assurance standards^[110].

Animal Welfare (Sentience) Act 2022

The Animal Welfare (Sentience) Act creates an Animal Sentience Committee (ASC) whose primary function is to review and report on whether, or to what extent, the UK government is having, or has had, ‘all due regard to the ways in which its policies might have an adverse effect on the welfare of animals, as sentient beings’.

Section 5 of the Act provides that ‘animal’ means ‘any vertebrate other than Homo sapiens’, as well as cephalopod molluscs and decapod crustaceans.

The Act extends to Scotland, but policy relating to legislative provision falling within devolved competence – which includes most animal health and welfare policy – is excluded.

Codes of practice

Section 37 of the Animal Health and Welfare (Scotland) Act 2006 gives the Scottish Ministers powers to make animal welfare codes of practice to provide guidance on the Act and regulations made under it. The Scottish Government has issued codes to cover the welfare of dogs, cats, rabbits, cattle, gamebirds and sheep. More recently codes for meat chickens, laying hens and pigs have been updated and replaced with Scottish Government guidance issued under section 38 of the Act. Non-compliance (or otherwise) with the relevant code or guidance may be used as evidence of liability (or otherwise) in court proceedings under the Act.

There is no animal welfare code of practice or guidance under the 2006 Act for either farmed or ornamental fishes.

Section 7 of the Aquaculture and Fisheries (Scotland) Act 2007 makes provision for the Scottish Ministers to approve a code of practice giving practical guidance to fish and shellfish farmers and promoting good practice in respect of parasite control, containment and prevention of escapes, and the recovery of escaped fish. The code of practice referenced is the Code of Good Practice for Scottish Finfish Aquaculture issued by the Code of Good Practice Management Group.

This code was developed by the fish farming industry, in consultation with industry and stakeholder groups. In its latest edition (2015) it is described as being overseen by a management group. Non-compliance with the code can lead to enforcement action by the Scottish Ministers (in real terms, by Marine Directorate fish health inspectors) in the shape of a notice.