On the 13th of January another closure of premises direction was made – GC 2021/0011. As with its predecessors, it entirely replaces the earlier direction on this topic; so can be read without reference to the earlier directions. Comparing the two:
There is a slight redrafting of the scope of the direction, with a clarification of the scope of the direction, and a useful new terminology – Closed Premises and Open Premises (para.5). There is a slight misphrasing in para.6 (which was present in the previous direction): the passage “where this Direction, or any other Direction made under the Regulations” seems to be missing a final phrase. The requirement on premises to ensure employees work from home where possible is clarified but not substantively changed (para.6(b)).
There is a substantive change to the section dealing with the duty on premises to maintain appropriate social distancing and adequate hygiene measures – there is now an express duty to “as far as possible, ensure others at the premises maintain appropriate social distancing” (para.6(c)) – on my reading covering not only employees, but also customers. There is a slight ambiguity in the section as to whether this also applies to adequate hygiene measures “including face coverings” – the different wording between the social distancing rule (“as far as possible”) and the hygiene rule (“where reasonably practicable”) suggests not. If the intention is, for instance, for retailers to have a duty to ensure customers wear face masks, this might usefully be made clearer in the next version.
The Schedule, as with the predecessor, distinguish between Closed Premises (which may be permitted to open for some purposes), and Open Premises (which may be required to meet special conditions).
In relation to Closed Premises, one significant addition is explicit permission for non-essential premises to “deliver goods or offer a pre-booked contactless collection service, providing they minimise any public access to the premises” (Schedule 1, part 1). Another is the closure of garden centres, except for delivery or pre-booked contactless collection (Schedule 1, part 1).
In relation to Open Premises, the most significant change is in relation to non-essential goods being sold in a retailer open for essential goods (the obvious example is a supermarket or corner shop). A new qualification states “Non-essential goods sold by a retailer or wholesaler that are not in the immediate vicinity of essential goods should be restricted from public access where it is practicable to do so (i.e. restrict access to parts of the store or take otherwise reasonably practicable steps to minimise public access (including the amount of time spent and numbers of persons) and must adhere to any guidance issued by the Isle of Man Government” (Schedule 1, part 2). This is wrestling with the thorny issue of a specialist shop being required to close because it offers only non-essential goods, while a supermarket is allowed to open and sell the same goods. Strikingly, this new qualification applies only to premises open for the supply of essential food and groceries. The section allowing chemist and pharmacy premises to open is not subject to the same qualification. So a supermarket needs to show why it was not reasonably practicable to remove a hot water bottle from sale; while a chemist is under no such duty.
Additionally, merchant suppliers are now limited to in person sales to trades, although they may carry out domestic business by delivery or pre-booked contactless collection. The exception for forestry operations now excludes non-governmental forestry operations.
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