Hardware stores and garden centres can legally reopen under new laws signed by Health Minister Simon Harris – but the Government want them to remain closed for the Easter weekend anyway.
There is confusion over the new batch of Covid-19 restrictions after hardware shops were deemed ‘essential retail outlets’ along side newsagents and pharmacies.
Experts have told Independent.ie that while gardaí have been given sweeping powers to enforce the lockdown, they may be legally powerless to shut hardware and garden centres this weekend.
The Government has insisted that the public health advice is that these outlets should remain closed.
Senator Michael McDowell, a former tánaiste and attorney general, said there is “now a doubt about whether retail businesses for gardening and hardware purposes” can open.
“It's clear that gardaí cannot force them to close if they do open,” he said.
Hardware shops, builder’s merchants and garden centres were forced to close at the end of last month after the Government brought in a series of restrictions on public movement in response to the coronavirus pandemic.
Such outlets could only continue to operate if they were able to provide an emergency call-out or delivery service.
But the regulations to give garda powers to enforce the restrictions on public movement up to midnight on Sunday now classify them as “essential retail outlets”.
This puts them in the same category as supermarkets, pharmacies, petrol stations, dry cleaners, post offices and banks which are all still open.
Dr Rónán Kennedy from NUI Galway School of Law said there is a “contradiction” between the list published by the Government last month and the regulations signed into law.
“I think these kinds of stores can legally open. There is nothing preventing them from opening today if they want to, although it would be against public health advice,” he said.
“It would be helpful if the government could clarify this contradiction.”
A Department of Health spokesperson said: “The regulations are drafted to ensure that a person accessing essential supplies can do so without committing an offence.
“There is no change to the NPHET (National Public Health Emergency Team) guidance in respect of garden centres and hardware shops.”
Independent TD Michael McNamara said garden centres and hardware shops should be allowed open during the crisis. "The Government, like everybody else, is bound by the law. Having made the law, the Government must abide by it,” he said of the new regulations.
“What's the difference between being able to go and buy paint in the hardware store and buying a few seeds in the garden centre.
“Neither are more dangerous than going to a liquor store to buy a slab of cider. I've rarely seen gangs of youths drinking cider in garden centres.”
The statutory instrument signed by Mr Harris lists “hardware outlets, builders’ merchants and outlets that provide, whether on a retail or wholesale basis - (a) hardware products necessary for home and business maintenance, (b) sanitation and farm equipment, or (c) supplies and tools essential for gardening, farming or agriculture purposes” under the heading “essential retail outlets”.
They are listed on the Government website, gov.ie, as “businesses that can only offer emergency call-out or delivery services”.
Legal experts say the regulations supersede the list published on gov.ie. But A Government source said that garden centres and hardware stores should not reopen.
They denied the regulations had included them as essential retail outlets in error, describing it as a “legal distinction between essential and emergency”.
Woodie’s DIY chief executive Declan Ronayne said the home and garden retailer's 35 stores nationwide will remain closed, but called for a statement from the Chief Medical Officer or a Minister to clarify the situation.
He said there had been a mistake in the regulations and Woodie's had sought clarity from the Government about the issue.
“We’ve been told they’ve absolutely no intention of changing the guidelines and we are respecting the guidelines,” he said.
“Our stores are to remain closed. We have no plans to open, apart from our online operation which has been trading safely since Tuesday.”