Hot Takeaway Food (VAT)

Nigel Mills Excerpts

Wednesday 23rd May 2012 Westminster Hall

[Nigel Mills (Amber Valley) (Con)]

It is a pleasure to speak under your chairmanship, Mr Scott. I join in the congratulations to my hon. Friend the Member for St Austell and Newquay (Stephen Gilbert) on securing the debate. Those of us with a history in taxation wish that every new tax measure could be the subject of an hour and a half of detailed debate. I suspect that we would make much better law if that were the case.

This is an interesting situation. I think that we all agree that tackling tax avoidance and sorting out anomalies is something that the Government should do, but when they come forward with proposals, there is a huge outcry about them, because trying to sort out some of those anomalies is much harder than people think. The reason why this anomaly has lasted for nearly 30 years is that it is incredibly hard to sort out. I jokingly wonder whether, if the Government had called this a fat tax, it would have received a lot more support, but I am not sure that that is a road I would like to encourage them to go down.

Like many other hon. Members, I am concerned about the impact on high street bakeries, especially the small local ones that are a real attraction on the high street. I am talking about those shops on the high street that drag people in to shop there because they like the better-quality product, the choice and the service that they get, compared with the standard, bland products that they might think they get from a supermarket.

I can list many bakeries in my constituency. There is Luke Evans, which has a factory shop that has been in existence for 200 years. There is the Birds chain of bakeries, which I suspect the hon. Member for Bassetlaw (John Mann) will know well; it is a big chain in the area. It has just opened a new shop on Heanor high street, and given that Heanor is a high street with some challenges, anyone opening a new or revamped shop there is very welcome.

I have real sympathy for such businesses. Their shops sell a wide range of products. Pasties and sausage rolls are a sizeable part of that range, although nowhere near the majority of their trade. They are one very useful way of getting income and dragging customers in. However, they are clearly craft bakeries, selling freshly baked products. That is how they make their money. They are not trying to be a disguised takeaway or to flout the law. They are trying to run a perfectly sensible, viable and valuable business of long standing that we desperately want to support in our high street.

[Mr Offord]

My hon. Friend is making an eloquent speech. Does he agree with my constituent Jonathan Grodzinski who runs Grodzinski’s bakeries, a business that has been in his family for well over 120 years, who says that the difference between his products and supermarket foods is the quality, which my hon. Friend has already mentioned? Mr Grodzinski’s concern is that customers will decide that they would rather buy cold food and that that will mean that they are buying food that is less than fresh, compared with when it first comes out of the oven.

[Nigel Mills]

Absolutely. I thank my hon. Friend for the intervention. The last thing that we want to do is to encourage people to buy horrible cheap food with only processed ingredients. That is much less healthy for us than buying proper quality stuff. I therefore have some sympathy for my hon. Friend the Minister in his predicament. It would be useful if he could set out what has tipped the Treasury over the edge into making the change. Was it a case of having to get the train home and thinking, “I’m a bit hungry. It’s been a long day in the Treasury. I can’t face the Chancellor’s bowl of jelly. I’ll have something from the station on my way. If I go to McDonald’s and buy a burger, I pay VAT, but if I go to that nice-looking pasty stand, which seems to be selling only hot pasties, for some reason there is no VAT”? Is that the contrast that tipped him over the edge or is it the fact that supermarkets are selling things that clearly should be VATable but they are manipulating their way around that? Is that what tipped the Treasury over the edge? It would be interesting to know.

[Glyn Davies (Montgomeryshire) (Con)]

I am grateful to my hon. Friend for taking my intervention, particularly as I missed the first part of the debate. He is very generous. Since I have been an MP, I have been approached several times by fish and chip shop owners. Perhaps unusually for an MP, they are the only approaches I have had—and I have had a lot—complaining bitterly about unfair competition, because people are selling pasties and using a microwave to heat them up after they have been sold. I understand exactly why people are concerned, but if we are challenging the whole concept of VAT on pasties, we need an answer—I certainly need one—on that issue.

[Nigel Mills]

I am grateful to my hon. Friend for that intervention. The point I was trying to make was about a craft baker on the high street who is not trying to be a takeaway in disguise for VAT planning, which is in contrast to what looks like something trying to be a takeaway, but is in fact something different. That is perhaps one of the things that has tipped the Treasury over the line. It would be interesting to know what mischief it is trying to fix. Which bad guys are we tackling? I honestly suspect that the bad guys are not the high street craft bakers who will be dragged into this. Their staff will be in a horrible situation.

I went to a couple of bakers in my constituency to see what the measure will mean. The sausage rolls are out of the oven and slowly cooling down in the very much non-heated—I was careful to check—displays in the shop. I guess that if they have been there for 20 minutes, they will still be hot, and therefore there might be VAT. If they have been there for 30 minutes, they might be on the border. If they have been there for 40 minutes, perhaps they are cold enough for no VAT. I have a horrible picture of the member of staff having to poke their finger into my sausage roll to check whether the one they are selling me is cool enough not to charge VAT on or still too hot.

There is a practical issue of how the shops will know day to day that the products sat cooling have cooled long enough for me to get a 20% discount, or have not cooled so the customer has to pay VAT. I suspect that such shops will put VAT on everything and put the prices up by 20%, and they will get a nice windfall for the bits that they can convince the Revenue are not VAT-able. In practice, they will not want to charge separate prices depending on whether someone buys a product marginally above or below the ambient temperature. That would be an unfeasible and rather strange situation for everyone to get into.

[Dan Rogerson]

With his expertise in the intricacies of tax law, the hon. Gentleman makes good points. I suspect that the windfall he mentions will be offset by any decline in trade due to the 20% increase in the cost of the product, set against cold products such as sandwiches.

[Nigel Mills]

I suspect that that is probably right. This will put people off buying some products entirely. I was trying to say that I suspect that the customer will end up with a 20% price rise on all products and it will be down to the baker to match that loss of sale with the income that they get to keep on non-VATable stuff.

The Government need to produce coherent, understandable and enforceable rules. The suggestion that a product would definitely be VATable if any effort was made to keep it warm, by putting it in a heat-retaining bag, under a hot lamp or on a heated rack, after it had been baked would lead to an understandable and clear situation. I am not sure that it would tackle all the mischief that the Government seek to tackle, which is why it would be helpful to understand exactly what problem they want to solve. It would not stop something that looks a lot like a takeaway pretending to be a bakery, which I suspect is something that they would like to deal with.

[Ian Swales]

I pay tribute to the hon. Gentleman’s tax knowledge, from which we are benefiting on the Finance Bill Committee. Does he agree that there is an EU law that requires changes in taxation to be clear and precise? From his knowledge, does he recognise that the Government could be challenged under EU law owing to the complexity of the potential change?

[Nigel Mills]

I spent many years in practice looking at areas where UK tax law could be challenged under EU law. As the years went on, the European Courts became a little more sensibly in favour of the tax authorities rather than the taxpayer, so I never like to predict what a challenge under EU law could achieve. The hon. Gentleman makes a fair point; as taxpayers, we are entitled to expect clear tax law that can be sensibly enforced.

Can the Minister think of other ways to tackle the mischief he wants to tackle without putting staff in every high street in a situation where they have to finger all the products they sell? I am not suggesting that they will literally do that; they will have to have some kind of technical probe or something.

Could the Minister find a way to exempt businesses in which the sale of hot baked products accounts for no more than half their turnover? Clearly they are not in the business of selling hot food, but are trying to sell cakes and bread, so such products are but a small part of their trade. That suggestion will not fix the problem for my hon. Friends from Cornwall, who are looking at businesses based entirely on pasties, but it would take away the worst position for high street shops, for which there are definitely unintended consequences. I fear that otherwise we will end up with a measure that will not work, will clobber the innocent, and those who flout it will find a way to redesign their businesses to get out of it. That is the worst situation—innocents caught in the crossfire. Some people have pushed the whole system too far.

We all know that thirty years ago, Lord Lawson tried to exempt bakeries that produced freshly baked goods. We have a picture of bakers putting things in ovens at 5 o’clock in the morning and customers queuing to buy hot bread, and that clearly should not be VATable. That is not really what happens in most high street bakeries, where the goods are baked in a central bakery and appear in the shop early in the morning. It is unlikely that I would get hot bread, unless I was in the shop nearest to the central bakery very early in the morning. We need to get away from that quaint image that probably applies only to a factory outlet bakery of the type that Luke Evans has. I do not think that most of the baked products I buy are hot, except for those that are carefully baked on site, and they tend to be the products that the customer wants to have a chance to eat hot. That is the line we need to work around.

What exactly are we concerned about? What mischief are we trying to fix? What are we trying to protect? The proposals the Government are consulting on will not get them to where we all want them to be and will need some careful revision.