Nicola Sturgeon has refused to say if her government sought legal advice on the policy of discharging covid patients to care homes.
She claimed the Ministerial Code prevents her from answering the question asked by the Sunday Mail.
But we can reveal there is no such barrier to disclosing whether lawyers advised the Scottish Government on the matter.
It follows a ruling at the High Court in London last week that said the UK Government practice – which likely contributed to the horrifying death toll among elderly residents – was unlawful.
The landmark judgment applies to England but it could open a path to legal action in Scotland, along with demands for ministers and health officials to face prosecution.
More than 4000 people died with Covid in Scotland’s care homes.
In an exclusive interview, the First Minister would not be drawn on whether the Scottish Government sought a legal opinion on the matter.
It comes as a lawyer representing grieving families called for the Crown Office to investigate the possibility of criminality relating to care homes deaths.
Sturgeon said: “In terms of the Ministerial Code, when it comes to answering questions about legal advice, you know the position there, so that’s not a line of question that I’m able to do.”
The Ministerial Code, however, is clear that ministers can “acknowledge publicly that they have received legal advice”, even though they must not divulge its contents.
The First Minister added it would be for the courts to decide if anyone should face criminal action and insisted she tried
to take the “best possible decisions” on Covid.
She said: “These are not matters for me as a politician – decisions around legal action is for others and in our democracy.
“This was a ruling of England. We’ve got a public inquiry coming up where it will be important for all these issues to be properly and independently scrutinised.
“It really matters to me as somebody who is the key decision maker in Scotland … that there is a proper process of scrutiny. But every step of the way from the outset of this pandemic, I, my ministers, my Government, have tried to take the best possible decisions based on the evidence and advice that we had at the time to protect health and life.
“We know things about Covid we didn’t back then and if we could go back with the benefit of hindsight, I’m sure we’d do things differently. I feel the weight of responsibility for these decisions very heavily.”
Cathie Russell, who lost her mum Rose last year after spending more than a year in virtual isolation in her care home, founded the Care Home Relatives Scotland group.
She has been instrumental in the Sunday Mail-backed campaign calling for legal rights for families.
She said last night: “It’s disappointing that we can’t find out the basis on which these decisions were made but hopefully we can find out more at the inquiry.
“The English decision made clear that even with the information they had at the time they shouldn’t have taken the decisions they did.”
Caroline Grattan, whose mum Margaret died in a home in Tullibody, Clackmannanshire, in May 2020 called on the First Minister to reveal the legal advice.
She said: “Many homes took in patients because they were greedy for money. It makes me so angry because my mother should still be here.
“Nicola Sturgeon should stand up and be counted.”
Caroline, 57, is planning legal action against the home’s owner and backs other families in their fight for justice.
A total of 4020 residents died with the virus in Scotland and Sturgeon has faced tough criticism over the policy of discharging infected patients from hospitals into homes.
The practice was revealed by the Sunday Mail in April 2020, and former health secretary Jeane Freeman said the policy had been changed days after our story, however evidence emerged that it had continued in many cases.
The Crown Office is investigating thousands of deaths in care homes.However, prosecutors have refused to say if any criminal investigations will stretch as far as probing the actions of ministers and public health officials.
In March, the Scottish Government announced the details of a public inquiry into the handling of the pandemic, to be led by Lady Poole.
Lawyer Aamer Anwar, acting for families bereaved by Covid, raised the issue of the English court judgment with Scotland’s Lord Advocate, Dorothy Bain QC, and called for any issues of criminality from the public inquiry to be properly investigated.
He said: “The elderly patients transferred to care homes should not have been treated as ‘expendables’, whose right to life was allegedly breached. If that was indeed the case then their families have the right to know the truth, without which there can be no justice.”
The Crown Office said it is still gathering information about every Covid death. A spokesperson added: “The Covid Deaths Investigation Team (CDIT) will work with the relevant agencies to ensure that all necessary and appropriate enquiries are made.”
The Scottish Government said: “Under the Scottish Ministerial Code, ministers must not divulge either the source or content of legal advice, other than in exceptional circumstances.”
Sturgeon spoke to the Sunday Mail as Scotland prepares to go to the polls in local elections on Thursday.
She added: “My message to voters next week is to vote SNP first and foremost for representation who will defend, protect and enhance services.”
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