Loopholes leave new smoking ban laws looking a little hazy

YOU can light up on an oil rig, but must stub out in a cigar store; you can smoke on a ferry berthed in Rosyth, but not one moored in Oban. The baffling contradictions in Scotland's smoking ban - which allow a suspect to puff freely in a police interview room while environmental wardens crack down on those sneaking a furtive drag in an outdoor smoking shelter - are coming to light with only a few weeks to go before the big stub-out.

A series of loopholes and exemptions come into play on 26 March that will see smoking permitted in some surprising places, such as adult hospices and submarines, while being prohibited in previously private places such as a lorry driver's cab. While passengers on CalMac ferries will be expected to obey the Scottish Executive's new legislation, with smoking permitted only on the open deck, those boarding the Superfast ferries at Rosyth are exempt as the vessel is on an international route to Zeebrugge in Belgium, so they will be able to enjoy a smoke with their pint.

The position with regard to Scotland's fleet of fishing trawlers is, while not quite at sea, at least bobbing about on the waves. When tied up in Scottish ports, fishing vessels are classified as places of employment and therefore subject to the smoking ban in enclosed areas, such as the vessel's bridge, but once out to sea and beyond the 12-mile perimeter of Scottish waters crews are effectively free to do as their captain permits. Bertie Armstrong, the chief executive of the Scottish Fisherman's Federation, says: "With everything else that Scotland's fishermen have to contend with, the smoking ban is really the least of their problems. A quarter of a mile out to sea, to be honest, they can do as they please; who is there to stop them? But once outside territorial waters the relevant law does not apply. Many vessels are already non-smoking, but it is really up to the individual captains."

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Truck drivers visiting Scotland, however, will have to stub out their cigarettes before Gretna and display an A5-sized "no smoking" logo in the cab while on Scottish roads.

Van drivers are also banned from smoking in their vehicles even if they are on their own, as are cabbies, but company car drivers are exempt if they are sole users of the vehicle.

With twisted irony, even those last chilly fortresses of smokers' rights, the outdoor smoking shelters, face a ban on their principal purpose - unless the shelter is adapted so that at least 50 per cent of the structure is open. Among those shelters that failed to meet the necessary standards before Christmas were those belonging to the Scottish Executive at St Andrew's House and Victoria Quay in Edinburgh; however, the Executive insists they will comply by the March deadline.

Audrey Ferrie, head of licensing at the law firm McGrigors in Glasgow, has been advising a number of establishments on the erection of smoking areas and says that the legislation is open to interpretation. "The key phrase is 'wholly or substantially enclosed' - the term 'wholly' is relatively clear, but what does 'substantially' actually mean? Some people are arguing that if there is no roof on a building then it's acceptable, or if it's got two open sides or three. I have read in the licensing-trade press that some local authorities are interpreting it differently from others."

Scotland's farming community may have felt safe in the great outdoors, but in many cases they will no longer be able to smoke as they plough because all enclosed farm machines, such as tractors and combine harvesters, are now deemed a place of work, unless it can be shown that the vehicle is only ever used by one person. Smoking on old-fashioned tractors which are not enclosed by windows, however, is permissible, but such vehicles are exceedingly rare in light of modern health and safety concerns.

According to the new legislation there are ten exemptions to the ban. These are: residential accommodation; designated rooms in adult care homes; adult hospices; designated rooms in psychiatric hospitals; designated hotel rooms; detention or police interview rooms; designated rooms in offshore installations such as oil rigs; private vehicles; designated laboratory rooms where research into smoking is carried out; and HM submarines and ships of the Royal Fleet Auxiliary.

Smokers spotting a loophole in hotels that have designated smoking rooms will be disappointed to find they would not be permitted to bring groups of friends up to their room to smoke during a televised rugby game, for example. A spokesman for the Sheraton Hotel in Edinburgh, which does offer smoking rooms, says: "There will be no parties in our bedrooms."

A spokesman for the Scottish Executive explained smoking was permitted in adult hospices for people who were unable to leave their beds to travel to a designated smoking area. The police have also successfully argued that agitated suspects should be permitted to smoke as an aid to interrogation. Yet Fraser Gilchrist, the area manager of Robert Graham cigars, which has stores in Glasgow and Edinburgh, remains frustrated by the ban on smoking in specialist tobacconists. The store has had to close its cigar lounge and, as of 26 March, staff will be unable to check the standard of cigar stock in the store. He says: "It is ridiculous that I won't be able to smoke a cigar in the store to check the humidor is keeping them in the right condition or to try out new stock."

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Maureen Moore, the chief executive of anti-smoking campaign group ASH Scotland, says the legislation is not only clear but "world class" and that in future years it might go even further: "We are proud of the smoke-free law Scotland is bringing in on 26 March. It takes account of evidence and experience from other countries and is comprehensive, world-class legislation, which will help protect people from exposure to toxic second-hand smoke.

"The very few exemptions have been carefully debated and are there for good reasons."