The thread on Canadian elections got me to wondering: What would happen if a government in the UK or Canada refused to call an election within the five-year period? Or suppose it passed a statute extending its own term?
To make this GQ rather than IMHO, I’ll phrase it as: Are there any legal avenues for compelling an election, as opposed to purely political agitation? Can the Sovereign dissolve Parliament? Can the courts order an election?
In the event it was a naked power play by the PM/Government (in this usage equivalent to the Ministers from the party in power), I suspect it would be the legal duty of the Crown (Queen/Governor General) to issue a Writ of Elections. (For what it’s worth, just as the Queen/GG takes most of the official actions, but does it on the “advice” (=instructions) of her Government, it is technically the Crown who summons Members to Parliament – but she summons those who first win elections.)
In point of fact, this is the sort of constitutional crisis that the Parliamentary system is set up to avoid. If there is some good reason why elections ar a bad idea at the moment even though it’s legally time for them (the Luftwaffe is blitzing the cities; Japan has invaded Queensland or British Columbia; etc.), then Parliament will vote to override the five-year limit, as was done in 1940 in the U.K.
At the Commonwealth level* in Australia, section 28 of the Constitution requires that each House of Representatives automatically come to an end after three years:
This provision cannot be changed via a simple statute. A referendum is required to effect change in the Constitution. So a government could not just extend its term via legislation, even if it had majorities in both houses of parliament and could easily pass such a bill. There have been attempts via referenda in the past to alter the Constitution to provide for four year terms, fixed election dates etc. The voters have not assented.
The Constitution gives the Governor-General the power to issue writs for a general election once a House of Representatives has expired:
In the unlikely event of a government coming to its end after three years, and the PM not advising the GG to issue writs, I assume that the GG would do so on her own initiative under section 32. There would certainly be plenty of public agitation for it from the Opposition, media and general public.
In the UK, a governing party could, in theory, pass legislation extending its own term. It’s even happened, as noted by Polycarp. If the present government were to try such a stunt, it seems likely that they would be unable to get it through Parliament, but there is no authority that can declare an act of Parliament to be illegal.
Well, except that the monarch must sign all laws, and she could refuse to do so. In general, a monarch refusing Royal Assent would be a pretty serious constitutional crisis, but so would a government attempting to establish a dictatorship.
In the case of a blatant power-grab (“Fuck the constitution, we’re not leaving!”), well, the monarch is the one who calls elections by dissolving Parliament. A government which ignored the constitution would be treated in much the same way, I suppose, as a US President who simpy declared that his term was indefinite - they’d likely be ignored.
If their forcible removal from Whitehall and the Palace of Westminster became necessary, well, the armed forces swear allegiance to the monarch, not to any particular Parliament or government.
That’s not technically true - the courts have the power to declare laws passed as incompatible with other or superceding laws. So whilst you’re right no-one can make an Act of Parliament illegal (because an Act is by definition what the law is), they can be and are challenged and sometimes overturned (be quashed).
Furthermore Parliament cannot pass laws that limit the ability of future parliaments to consider or make laws.
There is also the important safeguard that bills extending the life of a UK Parliament have the unique distinction of being the only type of bills over which the House of Lords retains an absolute right of veto. Not that the Lords need use it, if, as during WWII, there is a genuine reason for the extension. But this does mean that such bills are especially difficult to pass.
This is a hijack, but I’d like to add the interesting fact that this aspect you mention collided with the Canada Act of 1982, which set up Canada’s current constitution and was passed as an act of the UK Parliament. This statute explicitly says:
This section quite explicitly means that Parliament deprived future Parliaments to make laws with regards to Canada, which is, according to the traditional view you mention, not possible. To my knowledge, nobody has found a solution to this theoretical problem so far, which, thank God, hasn’t become a practical issue and is not likely to ever become one. The same goes for other statutes granting autonomy or “independence” (as far as a Commonwealth realm can be said to be “independent” from Britain) to the former dominions, as the Australia Act of 1986 and the Statute of Westminster of 1931.
Besides, I’d like to add that the European Court of Justice does have the authority to declare a British Act or Parliament inapplicable if it collides with European Union law.
There is some precedent for that, in 1975, when the Governor-General dismissed the Prime Minister, commissioned the Leader of the Opposition as a caretaker Prime Minister, and the new PM called on the election. This was, of course, extremely controversial.
The reason why the GG took such an unusual step was not that the PM was trying to go beyond the 3 year limit (the previous election had been only 18 months earlier), but because the PM was trying to govern without supply. The government did not have a majority in the Senate, and the Senate had failed to pass the required supply bill. So the controversy is not just about what the GG ought to do in such a situation, but also about what the Senate ought to do about supply bills when the government has a clear majority in the House of Representatives.
I had already mentioned the courts’ power to do this, although neglected to specify which courts I meant. Both the EU and domestic courts can overturn laws.
Apples and oranges, but the U.S. had a presidential election in 1864 in the midst of the Civil War (and congressional and state elections at all levels throughout). Lincoln thought, correctly IMHO, that the democratic process had to go forward even in the midst of the worst internal upheaval the nation has ever suffered. Lincoln was reelected, but he easily might not have been. And yet I don’t think anyone believes he would have refused to leave office if that had been the decision of the voters.
Australia had two federal elections during WW2, in 1940 and 1943. In addition, the government changed parties in 1941, when two independent MPs changed from supporting the United Australia Party to supporting the Australian Labor Party. At the time it was a real possibility that Japan would invade Australia, since it had occupied the Dutch East Indies and New Guinea to the immediate north of Australia.
Well – technically – only part of the U.S. did. 
Thanks to all for the discussion. This is fascinating.