Nicola Sturgeon declined to say whether her government had sought legal advice on the policy of sending covid patients back to care homes.
She claimed the Ministerial Code prevented her from answering the question posed by the Sunday Mail.
But we can reveal there is no such barrier to disclosure if lawyers have advised the Scottish Government on the matter.
This follows a High Court ruling in London last week that said the UK government’s practice – which likely contributed to the horrific death toll among elderly residents – was illegal.
The landmark judgment applies to England, but it could pave the way for legal action in Scotland, as well as legal action demands for ministers and health officials.
More than 4,000 people have died with Covid in Scottish care homes.
In an exclusive interview, the Prime Minister would not be drawn on whether the Scottish Government has sought legal advice on the matter.
It comes as a solicitor representing bereaved families has asked the Crown Office to investigate the possibility of criminality linked to care home deaths.
Sturgeon said: “In terms of the Ministerial Code, when it comes to answering questions about legal advice, you know the position there, so it’s not a line of questioning that I’m following. able to do.”
The Ministerial Code, however, specifies that ministers may “publicly acknowledge that they have received legal advice”, although they must not disclose its content.
The Prime Minister added that it would be up to the courts to decide whether someone should face criminal charges and insisted she had tried
make the “best possible decisions” on the Covid.
She said: “These are not issues for me as a politician – decisions about legal actions are for others and in our democracy.
“It was an England decision. We have an upcoming public inquiry where it will be important that all of these issues be properly and independently considered.
“It really matters to me as someone who is the primary decision-maker in Scotland…that there is a proper review process. But at every stage since the start of this pandemic, I, my ministers, my government, have tried to make the best possible decisions based on the evidence and advice available to us at the time to protect health and life.
“We know things about Covid that we didn’t know then and if we could go back in hindsight I’m sure we would do things differently. I feel very heavily the weight of responsibility for these decisions.
Cathie Russell, who lost her mother Rose last year after spending more than a year in virtual isolation in her care home, founded the group Care Home Relatives Scotland.
She was instrumental in the Sunday Mail-backed campaign calling for legal rights for families.
She said last night: ‘It is disappointing that we cannot find out the basis on which these decisions were made, but hopefully we can find out more during the investigation.
“The English decision made it clear that even with the information they had at the time, they should not have made the decisions they did.”
Caroline Grattan, whose mother Margaret died at a home in Tullibody, Clackmannanshire, in May 2020 called on the Prime Minister to reveal the legal opinion.
She said: “Many homes took in patients because they were hungry 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 owner of the home and supporting other families in their fight for justice.
A total of 4,020 residents have died from the virus in Scotland and Sturgeon has come under heavy criticism over the policy of discharging infected patients from hospitals to homes.
The practice was exposed by the Sunday Mail in April 2020, and former Health Secretary Jeane Freeman said the policy was changed days after our story, but it appeared to have continued in many many cases.
The Crown Office is investigating thousands of care home deaths. However, prosecutors declined to say whether criminal investigations will go so far as to probe the actions of ministers and public health officials.
In March, the Scottish Government announced details of a public inquiry into the handling of the pandemic, which will be led by Lady Poole.
Barrister Aamer Anwar, acting for families bereaved by Covid, raised the issue of the English court’s judgment with Scottish Lord Advocate Dorothy Bain QC and called for any criminality issues arising from the public inquiry to be subject to appropriate investigation.
He said: ‘Elderly patients transferred to care homes should not have been treated as ‘consumables’, whose right to life would have been violated. If that was indeed the case, then their families have a right to know the truth, without which there can be no justice.
The Crown Office said it was still collecting information on every Covid death. A spokesperson added: “The Covid Death Investigation Team (CDIT) will work with relevant agencies to ensure that all necessary and appropriate investigations are made.”
The Scottish Government said: “Under the Scottish Ministerial Code, ministers must not disclose the source or content of legal advice except in exceptional circumstances.”
Sturgeon spoke to the Sunday Mail as Scotland prepares to go to the polls in Thursday’s local elections.
She added: ‘My message to voters next week is to vote SNP first and foremost for representation that will defend, protect and improve services.
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