Legality and Morality in the Partygate and Djokovic Affairs (Final Covid Diary?)

With a promised end to restrictions in the UK at the end of the month, I’m hoping that this post will serve as my final Covid diary. Indeed, it now seems time to call time on almost two years of life-altering, state-mandated restraints. For all its raging transmissibility, the Omicron has thankfully resulted in very low numbers of hospitalisations and deaths. 

What continues to rage, however, are the fiery cultural divisions in society. There seems to be a perverse, inverse relationship between the level of threat of the virus and how mad and maddening we behave towards it and one another. Why is this? In large part, this is because the corona pandemic constitutes a moral crisis as well as a public health one. To be sure, we would be fooling ourselves if we thought that the last two years has simply been about health. At root, the last two years have laid bare deep and troubling metaphysical assumptions about risk, puritydeath

We’ve seen these cultural and moral assumptions play out in two recent events: first, the revelations of PM Boris Johnson’s attendance at mass party events in May 2020 and second, the deportation of tennis star Novak Djokovic from Australia. Both events raise two distinct questions which I will explore in what follows: 

First, the question of legality and fairness: were the rules created applied consistently and fairly (including, in the case of the first event, by those who created them!)? 

And second, and more deeply, the question of morality and reasonableness: are the rules themselves worth following? 

Partygate 

At one level, the reaction to the revelations of a party in the gardens of Number 10 Downing Street has been a rather unifying event. Politicians and commentators from across the political spectrum have joined together in condemning Johnson for his callous failure to abide by the rules he helped to create, and ruthlessly enforce. Johnson’s attendance at various parties (how many will be made clear in Sue Gray’s awaited report) took place while many felt the full brunt of restrictions whose social ramifications touched every facet of life and death: home visits, hospital, weddings, birth centres and indeed funerals.

The public outcry is well justified and I am happy to register my own anger and frustration given the hard sacrifices made by so many. Boris’s antics with Partygate are reminiscent of events 100 years ago during the last days of Lloyd George. If and when he does go, Johnson’s final salvo could be to lift restrictions and rightly cite the success of the vaccination and booster campaigns, as well as delivering Brexit and solidifying the re-alignment of British politics. But there’s a high chance that he will be forever remembered by most Britons for heartlessly “making the most of the weather” while barring his own people from social activities that are beyond quantification.  

What this popular tumult also highlights are the values we prioritise as a society and the sins we will not forgive. Matching up the Cardinal Sins to party politics, the public rolls its eyes at Tory Lust and Greed and Labour Envy (the LibDems tend to induce Sloth). But the biggest political sin of them all in the eyes of most Britons would seem to be unfairness. In political terms, this is the vice that suggests that the governors are above it all, and certainly above the governed, and that the rules—not least the rules they created—do not apply to them. Like the kings of Psalm 2, the powerful often seek to “break asunder the bands” that might restrict them, and act beyond the limits they themselves have set. Unfairness assumes superiority. It is, after all, the evil offspring of Haughtiness. And over the last two years, it has perhaps been best captured in that catchphrase, “one rule for them and one for the rest of us”. For Haughtiness is also a close cousin of Hypocrisy. 

We are right to feel indignant over unfairness that is, as it is in this case, callous and unjust. The rule-makers should, in most if not all cases, follow the rules they have set, and especially ones that require as much social deprivation as the corona restrictions have. 

But it is here that I would wish to interject, hopefully not with insensitivity, that it is also worth questioning those rules themselves. Scepticism might not make much difference in looking back but it can make a difference to how we react to draconian rules moving forward. The sense of unfairness at rule-makers becoming rule-breakers is, at least for me, matched, if not outstripped, by the existence of certain senseless rules. I have already commented on the ramifications of certain restrictions for social and community life, as well as personal liberty. I will never shake the sense that many of the rules themselves were disproportionate (criminalising indoor family gatherings, for instance and prohibiting communal indoor singing, including at churches), petty (police officers arresting sunbathers in the park) and cruel (care home residents being deprived of social contact with family members and friends). The Spectator‘s leading article this week brilliantly captures both of these moods, by rightly lambasting both the unfairness of the rule-makers breaking rules which the populace strove to keep and the inhumanity of those self-same rules the rule-makers created:  

Lockdown should have ended by then [May 2020] or, at the very least, been downgraded to advice, so police would not end up raiding children’s birthday parties or (as happened that day) going after bathers on Portobello beach. But the laws stayed in place for almost everyone—except for the rule-makers themselves. 

Novax Down Under

Many have interpreted the story of Novak Djokovic’s barred entry into Australia through the same lens of unfairness as the Partygate scandal. Where the events of May 20th 2020 certainly warrant this judgment (“one rule for them and one for the rest of us”), can the same be said for Novak Djokovic’s attempted entry into Australia? 

The picture is a bit murkier in this case. Djokovic’s efforts to arrive in Melbourne and compete were, it seems, based on information he had received from state-level government and Tennis Australia officials, all of which suggested that he would be successfully admitted seemingly on the basis of previous and recent infection (2 independent panels came to this view). Yet the federal level rules on exemption make no mention of previous infection as a grounds for entry for the unvaccinated. The best case Djokovic had was to appeal to the exemption whereby “a foreign national whose entry into Australia would be in the national interest, supported by the Australian Government or a state or territory government authority”. I’m not sure that this was the exemption he used. Moreover, it is unclear, to me at least, whether such an exemption also requires an individual to evidence a genuine medical exemption to the effect that taking the vaccine posed some sort of demonstrable health risk (again, recent infection doesn’t qualify on these grounds). Despite Australian PM Scott Morrison’s appeal to “clear rules”, those guidelines could be clearer. 

Still, Djokovic, as a well-seasoned traveller, and knowing the strictness of Australia’s immigration policies (not least in corona times) should surely have sought federal advice and not merely relied on the judgment of tournament organisers. It is difficult to say whether Djokovic willingly overlooked federal rules and sought to “game the system” or whether he genuinely thought that Tennis Australia’s judgment, on the basis of the scientific panels, would suffice. At the very least, Djokovic’s crime was naivety which led him to misunderstand the legal status of his covid exemption and the fact that the federal level rules would always come into play (Tennis Australia would surely bear some of the blame in this case for misleading Djokovic). At the very worst, he sought preferential treatment on the basis of his fame and prestige. Other details have come to light which suggest that he did gain favourable treatment from Tennis Australia, including the fact that his application for exemption was 7 days late and yet still considered. There’s also the folly of Djokovic failing to declare a trip to Spain in his visa application, as well as evidence showing that he attended a photo shoot in Serbia with teenagers when covid positive. 

Most Australian citizens were up in arms about Djokovic’s behaviour on the grounds that he sought exemption from the rules followed by other Australian citizens living in Australia. That’s one way to look at the situation. I’m not entirely sure that the “one rule for them and one for us” judgment works here, since, unlike Boris Johnson, Djokovic is not responsible for rules he did not create. Rather, he attempted to legally exempt himself from them. 

That’s the reaction of those living in Australia. But there’s also the question of choice for those seeking entry into Australia. Did Djokovic seek to avoid the rules to which the rest of Australian citizens living abroad and visitors to Australia are bound? By the Summer 2021, the Australian government considered 363,796 applications for travel exemptions and granted 171,029 of them. But how many applicants sought to appeal to a previous infection as grounds for entry? And how many were granted? If that number is zero and Djokovic was then granted entry on these grounds, then we would have a basis for judging this to be a case of the rich and famous seeking preferential treatment and the rules being applied inconsistently. 

So much for the question of fairness. But as with the Partygate scandal there’s also the issue of the morality or reasonableness of those rules themselves. To begin with, Djokovic’s deportation makes no sense epidemiologically, since there is no evidence that the unvaccinated are any more transmissible than the vaccinated (or, as I understand it, any more likely to contract the virus). To be sure, Djokovic’s refusal of the vaccine is idiosyncratic, at best (and follows a series of rather eccentric health-related behaviours). Yet, as I’ve explained before, as someone who is pro-vaccine, I continue to have severe reservations about the use of a vaccine mandate. In fact, not only does the mandate strategy fail on epidemiological grounds. Through heavy-handed tactics such as closed borders to the unvaccinated, governments also risk stirring up further anti-vaccination sentiment. The vaccine hesitant and those who are anti-vaccine frequently make reference to the state’s use of strong-arm tactics and so this kind of top-down decision risks confirming their fears. 

The deluge of abuse Djokovic received reflects genuine anger on the part of Australians who have suffered perhaps some of the worst deprivations of all. That’s fair enough, as the saying goes, but what has this to do with Djokovic? As Park MacDougald has argued, we seem to be in territory familiar to René Girard, with Djokovic becoming the scapegoat and focal point for the frustrations and resentments of many Australians. Watching the responses of Australians around the Rod Laver Arena in Melbourne to unfolding events, it was difficult to shake the sense that the whole episode has morphed into one of quasi-religious proportions. “I won’t be watching him because he isn’t vaccinated”, one young boy says. “He should’ve just done the right thing”, was a constant refrain from interviewees. Moral reasoning disappears and in its place we find bald, moralistic assertion. 

I should say here that my sympathy here extends not simply to Djokovic but to the millions of Australians—and those who sought entry to Australia, whether citizens or not—who did their best to abide by inhumane and petty rules. 

***

I suppose the point I come back to in all of this is that public indignation at the unfairness of rule-breaking is entirely valid. And yet, going forwards, perhaps these two events will also provide space for us to pause and consider whether governments should ever attempt to implement such senseless rules again. Much of our rage has focussed on the legality or legal enforcement of the rules. Perhaps we also need to turn now to considering the extent to which they were ever moral and reasonable.

Photo by Tingey Injury Law Firm on Unsplash

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