Ascribing sentience to fish: potential policy implications

7. Conclusions

There is considerable evidence from neurological, behavioural, anatomical, physiological and cognitive studies, relative to reasonable thresholds, for ascribing sentience to a variety of fishes. Fish have the anatomy and physiology to allow experiences and responses to noxious stimuli and stressors. Fish demonstrate behaviours including avoidance of noxious stimuli, suggesting a retained memory and processing of the stimulus by higher brain centres. Fish species can exhibit complex aspects of behaviour, such as self-recognition, use of tools, intraspecific and interspecific communication and cooperation, numerical ability, judgment bias and motivational trade-offs, which would all be considered evidence of higher order cognitive abilities in mammals or birds. Therefore, the scientific evidence supports the recognition of fish as sentient, i.e., able to have physical and emotional experiences that matter to them, in the way we understand the term for mammals and birds. There is no scientific or ethical reason fish should not be treated and considered in an equivalent manner to terrestrial vertebrates.

The capacities of fish, their needs and wants, may differ from terrestrial animals’ and may vary between different fish species, individuals and stages of development. Nonetheless, the evidence suggests that fish are individuals with personal experiences, as are other sentient animals. Where there is insufficient evidence as to when and how these capacities develop in early life stages, a precautionary approach is advisable.

Despite the scientific evidence that supports the statutory recognition of fish as sentient, other legislation is inconsistent and does not regularly afford fish comparable protections as terrestrial vertebrates. In some areas of public policy, fish are clearly included and protected to an extent, whereas in other areas they are omitted or are specifically excluded. This includes aspects of crucial areas such as transport and slaughter. Even when fish do fall within the scope of legislation, the protection is more limited, and the specifications less developed, than that afforded to mammals or birds.

In particular, Scotland’s main animal welfare legislation – the Animal Health and Welfare (Scotland) Act 2006 – applies to all vertebrates which fall within the statutory definition of a ‘protected animal’, thereby acknowledging their sentience, but nevertheless specifically excludes acts carried out in the normal course of fishing, even though some of those acts would be illegal if committed against other protected animals in comparable circumstances. The welfare impacts of capture and slaughter in commercial fisheries, for example, would not be permitted in other food production sectors and catch-and-release angling can lead to the injuring of sentient animals, a significant proportion of whom may die following the experience.

The only other exclusion under the 2006 Act relates to animals which are used lawfully in scientific procedures but, significantly, this is because their treatment is regulated under an alternative statutory regime (s. 47(a)). By way of contrast, animals involved in the normal course of fishing have no legal protection.

Purely from the perspective of animal sentience it is difficult to establish the scientific basis for this total exclusion. It is not as though the 2006 Act provides unlimited protection to other kinds of vertebrates: in respect of both the welfare offence and that of causing unnecessary suffering, there is a correlation between the circumstances and the treatment of the animal. Section 19(4), for example, provides that, in determining whether suffering is unnecessary, consideration is to be given to whether ‘the suffering was proportionate to the purpose of the conduct concerned’ and ‘ the conduct concerned was in the circumstances that of a reasonably competent and humane person’. Similarly, the duty to take steps to ensure the welfare of an animal is qualified by ‘as are reasonable in the circumstances’, including any lawful activity undertaken in relation to the animal (s. 24(1), (2)(b)).

While the Commission recognises that in developing public policy Scottish Ministers have to reconcile or, where this cannot be achieved, give priority to competing claims, we consider that in circumstances where their decision is to override the potential negative impact on the animals affected, it should be incumbent on them to give reasons for their decision and to demonstrate that they have given full consideration to the issue by carrying out a welfare impact assessment.

This is not such a radical proposition as it might first appear. UK Ministers are already under a duty to satisfy the Westminster Parliament that in formulating and implementing policy ‘the government has all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’ (Animal Welfare (Sentience) Act 2022, s.2(4)). This applies regardless of whether the policy applies only to England or to other parts of the United Kingdom. It is therefore the case that in respect of reserved matters, such as itemised above, or in circumstances where the Scottish Parliament has granted legislative consent for Westminster to legislate on a devolved matter, it is incumbent on the UK minister to have regard to the potential adverse effect on the welfare of animals in Scotland. It is the view of the Commission that both consistency and principle require Scottish Ministers to adopt a similar procedure.

In summary, fish are not consistently protected and due regard for the welfare of fish as sentient animals is not uniformly evidenced in policy or practice.