Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

This is not novel legislation. We are not starting to do this here. This approach was taken with the Competition (Amendment) Act 2022. There are considerable similarities between the Bill and that legislation.

Section 18 covers a broad suite of decisions, including appeals, namely: appeals against all regulatory decisions of ComReg under the European Union (Electronic Communications Code) Regulations 2022; appeals against regulatory decisions under Parts 2 and 4 of the Bill; and appeals against decisions of the Minister under the 2022 regulations in the context of his role and of the universal services and geographical survey provisions of those regulations. It is not solely about decisions relating to relevant vendors. Section 31 deals with to appeals relating to the designation of relevant vendors. The aim of these appeals provisions is to ensure that the appeals process is sufficiently streamlined and consistent. Removing the barrier to further recourse to the Court of Appeals would potentially open up the appeals process for gaming by operators who seek to submit continued appeals as a way of frustrating decisions of ComReg or the Minister. This could substantially reduce the effectiveness of decisions made. This opinion is based on experience and what happens in the courts right now. The alternative test suggested in the amendment of a risk to national security or public safety would not be relevant in the context of the overwhelming majority of decisions to which section 18 relates, which are more likely decisions relating to, for example, the imposition of access obligations on regulated entities under SI 444 of 2022 than any matter relating to national security.

The Law Reform Commission suggested a similar approach in its report on regulatory powers relating to corporate offences. It suggested that a test be applied for appeal from the High Court to the Court of Appeal. The test the Law Reform Commission suggested was to the effect that the decision involves that a matter be of general public importance or that an appeal be in the interests of justice. Law Reform Commission stated that this was to mitigate the phenomenon of regulatory gaming by reducing the opportunity for a well-resourced regulated entity to take appeals as a delaying or frustrating tactic. We share the concerns of the Law Reform Commission. That is the reason for providing a test for appeals to the Court of Appeal under the Bill.