The comments come in a blog for the UK Constitutional Law Association, written by professor of public law at Cambridge University, Mark Elliot, and Nicholas Kilford, a PhD candidate at the university.
It comes a week after the Supreme Court ruled that the bill seeking to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into Scots law went beyond the legislative competence of the Scottish Parliament.
The UNCRC bill was passed unanimously by MSPs in March and would have seen the incorporation of the UNCRC into Scots law.
The bill would have made it it unlawful for public authorities and any children’s service provider to act incompatibly with the UNCRC and gave the Children’s Commissioner the right to take legal action in relation to children’s rights.
In the long and technical assessment of the decision from the court, Professor Elliot and Mr Kilford write that the decision has profound consequences for the understanding of the constitutional arrangements for Scotland.
The two academics criticise the Supreme Court’s “highly unconvincing” ruling which they label “paradoxical”.
In the blog, they write: “The cumulative effect is a highly unconvincing judgment that reads the Scottish devolution settlement unnecessarily narrowly — an outcome that the Court prepares the ground for at the outset of its judgment when it says that the Scotland Act ‘must be interpreted in the same way as any other statute’ and according to its ‘ordinary words’.”
The two academics focus particularly on the reading of section 28(7) of the Scotland Act which states that the act does not “affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
The court’s reading of this section, on which its central conclusions are based, is criticised by the two accademics.
They write: “The UNCRC Bill judgment is doubtless one of the most significant judgments that the Supreme Court has rendered in relation to devolution.
"The Court’s broad reading of section 28(7) confirms (if the Continuity Bill case left any room for doubt) that devolved legislatures are constrained not merely by the sovereignty of the UK Parliament but by the more far-reaching, and imprecise, notion that it retains ‘unqualified’ power.
"It is paradoxical that arguably the most potent tools for restraining the Scottish Parliament are to be found in what might have otherwise been understood as fairly innocuous provisions of the very Act designed to empower it.
“The extent to which some of these ideas will take root remains to be seen, but the case is of potentially profound significance not only for the devolution settlements themselves but for our understanding of the wider constitutional landscape of which they form a part.”
Following the judgement, the deputy first minister John Swinney said the ruling meant Scotland was in a “ludicrous constitutional position”, while opposition parties criticised the SNP for playing constitutional games with children’s rights and that it was obvious the bill was “legally problematic”.