A hillwalker who wanted to bed down in a bothy at a rural beauty spot has slated a ‘loophole’ which allows smokers to light up in them - despite the nationwide ban.
The smoking ban, introduced in Scotland 12 years ago, made it illegal to smoke cigarettes in bars, restaurants, on public transport, in hospital grounds, and in cars where children were passengers.
But one exception to the rule was smoking in bothies - small stone shelters on estates, where ramblers can stay overnight for free.
Dave Monk, 40, was hiking with his wife and sons in the Cairngorms National Park when their plans to stay overnight were scuppered by smokers.
The dad-of-two, originally from New Zealand but who now lives in Aberdeenshire, only discovered that it was legal to smoke in bothies when he confronted a man who was doing so.
Mr Monk said: “We had taken our kids to this bothy and we had been there about an hour.
“We’d set ourselves up, kids had got their sleeping bags out, then these five guys arrive - one of whom proceeded to smoke in the bothy, next to where our kids sleeping bags were.
“They were literally being saturated by this guy’s cigarette smoke.
“I said ‘surely that’s illegal?’ and they said ‘no, it’s not illegal at all and we can smoke in bothies if we want to’.
“We ended up packing up and making a hasty retreat.
“I’ve asked around and others have had similar experiences.
“We’ve got a friend who’s a GP who had the same experience with her kids earlier in the year - she left because of smoking in the bothy.”
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When legislation for the smoking ban was drawn up there was fierce debate among the hillwalking community over whether the “enclosed space” rule should apply to bothies.
In the end, a loophole categorising them as a residential dwelling made them exempt.
Mr Monk added: “To me, it’s a public space.
“A bothy is open for anybody to go and spend the night in, so if it’s a public location surely it should be included in the legislation?
“The fact that it isn’t, for me, is a loophole.
“The smoking really detracted from the experience.
“In a sense it’s paradoxical to the clean, fresh air approach that you would expect from getting outdoors.”
A spokesman for the Mountain Bothies Association, Neil Stewart, said: “Our view is that any ban, were Parliament to introduce one, would be very difficult to enforce.
“This is because bothies are open shelters, there is no booking system, no warden, and no record of who has visited.
“And as the MBA does not own any bothies - apart from one in the Scottish Borders - any restriction would be a matter for the owner to enforce, not the MBA.
“The MBA is a bothy maintenance organisation, not an accommodation provider.
“We would hope that that respect includes taking into account the wishes of others with regard to smoking within the confines of the bothy.”
A spokesman for the Scottish Government said: “Bothies are not covered by the smoking ban legislation but we would always encourage the owners of bothies to have smoke-free policies.”