I am not going to be drawn into a commentary on an individual case. The noble Earl knows that he would never have done that as a Minister and equally he knows that I will not. The two bodies I have quoted have said that the threshold is very high. As we have seen in terms of the definition of hatred, a person who uses threatening words or behaviour or displays any written material which is threatening is guilty of an offence if he intends thereby to stir up hatred on the grounds of sexual orientation. That is where these bodies argue that the balance is right.
The noble Lord, Lord Stoddart, referred to other groups, making what I suppose may be called the slippery slope argument. The Government have said that we will look at other groups if there is evidence that hatred is being stirred up against them as opposed to individuals. That must remain the position and I do not apologise for it. If there is evidence that a particular group is being threatened or hatred against it is being stirred up in the way described as the problem at the moment, it must be right for any Government to consider the matter.
I understand the concerns about the impact which this offence might have on freedom of expression. Noble Lords have referred to previous debates and provisions in regard to the offence of religious hatred, and we took that as our starting point. The religious hatred offence covers words or behaviour that are threatening and intended to stir up hatred. That is what the new proposed offence also covers. It is true that the religious hatred offence contains a clause about freedom of expression similar to the one now proposed in this amendment. We did not duplicate that. The freedom of expression safeguard was added by Parliament during the passage of the religious hatred offence, but the Government said at the time that we did not think a safeguard was necessary and we do not think that such a safeguard is necessary in relation to this proposal.
I know that there is concern about whether these offences would have what has been described as a "chilling" effect on debate, particularly for those individuals and organisations who believe that homosexual behaviour should be discouraged. That concern is quite understandable, and the examples cited by noble Lords in voicing their concern that it would no longer be possible to express those views seem to come within this category. But I do not see how the offence as set out in the Bill could have such a chilling effect on debate, on reasonable expressions of dislike, on comedians telling jokes, or on the preaching of religious doctrine concerning homosexuality. None of these would be caught by the offences unless they were also threatening and intended to stir up hatred.
A number of comments were made about the practice of the police and, by implication, the Crown Prosecution Service. I am doubtful whether, frankly, the proposed amendment would clarify matters for the police. It could be argued that it would provide less certainty than is contained in the Government's provisions. One has to trust the police to distinguish between which cases are appropriate to investigate and which are not. The fact that the Crown Prosecution Service will always assess a case and will bring a prosecution only if there is a reasonable prospect of conviction and if it would be in the public interest is an important safeguard. Most importantly with this offence, as with the offences of inciting racial or religious hatred, the Attorney-General must consent to any prosecution.
Noble Lords seem to suggest that the provision of guidance would not be sufficient. However, my conclusion from the debate is that guidance is exactly what is required. I hesitate to debate with the noble Lord, Lord Dear—to whom, as a Birmingham resident, I pay great tribute for his excellent stewardship and leadership of our local police force—but there is no reason at all why sensible guidance, with the safeguards of the role of the Crown Prosecution Service and the Attorney-General's final decision, will not provide the kinds of safeguards that are required. When it comes down to it, none of the actions to which noble Lords have spoken would be covered by the offences unless they were threatening and intended to stir up hatred.
The noble Lord, Lord Stoddart, asked me whether I would be prepared to withdraw these clauses. I have written to him; I agreed the letter on Friday and I am sorry that it has not reached him. However, ultimately, we believe that these provisions are sensible. They were debated well in the other place and we have had a good and well tempered debate here. I know that the noble Lord, Lord Waddington, will have to consider carefully what action he intends to take but we consider that the Bill as currently drafted meets the concerns that he has expressed.