Conservation of Habitats and Species (Offshore Wind) (Miscellaneous Amendments) (Scotland) Regulations 2026: BRIA

Section 4: Additional Implementation Considerations

Enforcement/Compliance

The habitats reforms are not anticipated to require any enforcement / compliance activity. As set out above in section 3, MD-LOT is responsible for the processing of offshore wind applications and supporting organisations through the licensing and consenting process. The reforms would need to be taken into account as part of these processes.

UK, EU and International Regulatory Alignment and Obligations

Internal Market/Intra-UK Trade

The habitats reforms have been developed in close consultation with the UK Government and other devolved governments to minimise regulatory divergence between UK nations. This reflects the complex role of reserved and devolved powers in this policy area.

Scottish Ministers have executively devolved competence in relation to applications for consent to construct and operate electricity generating stations under the Electricity Act 1989 across both the Scottish inshore region (within 12 nautical miles (nm)) and offshore region (beyond 12 nm). Legislatively, however, the Scottish Ministers only have the power to amend the Habitats Regulations as they apply to the Scottish inshore region.

The UK Government has the power to make legislation in the Scottish offshore region, and any amendments made to the Habitats Regulations through the UK Government’s Statutory Instrument (SI) will apply there. The Scottish Government will be responsible for developing guidance on how the policy would apply across both the Scottish inshore and offshore regions.

International Trade Implications

The development of the habitats reforms has taken into account potential trade implications, including in relation to the UK-EU Trade and Cooperation Agreement. More widely, the reforms are not anticipated to have a significant impact on the import or export of specific goods or services, nor does it place particular technical requirements upon imported or exported goods.

Alignment Consideration

This SSI is likely to impact on the Scottish Government’s policy to maintain alignment with the EU. The SSI amends the Habitats Regulations, which incorporated Council Directive 92/43/EEC of 21 May 1993 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”) and Council Directive on the Conservation of Wild Birds (2009/147/EC). The Habitats Regulations are therefore assimilated law (formerly known as retained EU law).

The SSI will result in a divergence from EU law. The implementation of the SSI and associated guidance will result in a different approach to how the Habitats Regulations apply for offshore wind in the Scottish inshore region when compared to the current approach taken within the EU. However, the Scottish Government remains committed to maintaining and advancing the high environmental standards that Scotland shares with the EU such as by adhering to international environmental obligations and driving forward policy that targets the climate and nature crises. The compensation hierarchy which will be detailed in guidance, as noted above, will be an important environmental safeguard in the application of this SSI.

Legal Aid

The habitats reforms are not anticipated to impact individuals' right to access to justice through availability of legal aid.

Digital Impact

The habitats reforms are not anticipated to have any significant digital impacts.

Business Forms

Not applicable.