Hot Takeaway Food (VAT)

Debate between Stephen Gilbert and Andrew George

Wednesday 23rd May 2012 Westminster Hall

[Stephen Gilbert (St Austell and Newquay) (LD)]

It is a pleasure to serve under your chairmanship again, Mr Scott, and to welcome so many hon. Members. I place on the record my personal thanks to Mr Speaker for allowing the debate, which was originally slated for the day of Prorogation and so fell from the order of business. I am grateful to Mr Speaker for allowing it to take place today instead.

There is much to welcome in the Budget announced by my right hon. Friend the Chancellor, particularly the lifting of more than 2 million of the lowest paid out of paying income tax and the additional tax burden placed on those fortunate enough to be among the wealthiest in our society. However, I would not be doing my job as a Member of Parliament if I welcomed only the good news from the coalition Government and turned a blind eye to Government proposals that had a significant negative impact on my constituents and the country. The proposals for the extension of VAT to hot food, and in particular how they relate to baked goods, fall into that category.

I am, however, grateful to the Minister and to other colleagues in Government for the constructive way in which they have handled this issue and the concerns raised by me, my hon. Friends and the industry. I found them willing to listen and receptive to alternative solutions. It is surely in the best tradition of Government to recognise that none of us has a monopoly on wisdom. Their constructive engagement with me and others has been welcome.

I support the overall aims of the Government. It is right to seek to simplify the application of VAT rules on hot food, to close anomalies that have been exploited by supermarkets and others and raise revenue from those flouting the rules, to help tackle the national deficit and create a level playing field as between bakeries and other sellers of hot food, such as fish and chips. However, we have to do so in a way that actually creates simplicity, is enforceable by Her Majesty’s Revenue and Customs, is deliverable by businesses across the country, and, crucially, is understandable for consumers. The effect of the Government’s current proposals on the baking industry fall short in all four of those tests.

I would like to set out the practical problems and concerns with the Government’s proposals, and the likely economic impact on the baking sector if the proposals are not altered, and then present an alternative way forward that I hope will achieve the Government’s aims without any negative impact. I am not proposing, however tempting it is, to stand here and argue for an exemption for the Cornish pasty or the baking industry. I want to set out a framework that delivers the Government’s intention of consistency and simplicity.

I am delighted to have the support of my hon. Friends the Members for St Ives (Andrew George), for North Cornwall (Dan Rogerson), for Truro and Falmouth (Sarah Newton), for South East Cornwall (Sheryll Murray), and for Camborne and Redruth (George Eustice), and that of many other hon. Members from across the House and the country, including an alliance, however unlikely, with Devon.

It is understandable that the Government should seek to move away from the current situation in respect of VAT on hot food, where the basis of the test rests on the intention of the supplier. That is subjective, and has led to considerable inconsistency of application. In recent years, a plethora of case law tribunals have established significant anomalies—for example, two hours for zero-rated food, a position exploited by supermarkets in particular.

In place of that subjective and contestable test of intention, the Government’s proposals attempt to move towards a more precise test that centres on ambient air temperature, but that simply replaces one set of anomalies with another when it comes to baked products—pasties, sausage rolls, meat and potato pies and all the other savoury staples in our high street. There is little doubt that the ambient air temperature test will become the subject of significant dispute between bakeries and HMRC, with the potential for litigation. Why is that? The ambient air temperature is constantly changing. As the temperature of a naturally cooling baked product is also constantly changing, it raises the possibility of a pasty or pie at the same temperature being subject to different VAT rules in different parts of the country at the same moment. That is clearly a nonsensical position that will cause considerable difficulties in establishing a consistent ambient air temperature for every bakery in the country, a duty unlikely to be welcomed by HMRC. It will place an additional difficulty for the businesses concerned in deciding when to charge the customer VAT.

The proposed changes would be open to challenge in terms of legal certainty, and could tie up the industry and the Government in the courts for some time. The changes are contrary to the stated intention of the consultation—to simplify current rules and reduce uncertainty and costs for both businesses and HMRC. The ambient air temperature has already been found wanting by the courts. In the Court of Appeal, during the Pimblett case in 1988, Lord Justice Parker said:

“The test is a precise one. It involves a remarkable result that frozen food would be regarded as hot if the ambient temperature was one degree lower than freezing. A praiseworthy attempt to produce precision does not, in this instance, appear to me to have advanced clarity one whit”.

To an extent, that view seems to be shared by colleagues in the Treasury. In my discussions with them, it seems that the Government’s intention is not even to enforce the letter of the proposed rules, but to make a number of assumptions based on the quantity of each bakery’s products that should be standard-rated. That is untenable.

Any apportionment scheme cannot override the basic rules on supply, consideration and liability. That is even recognised in HMRC’s guidance. Any agreement based on the temperature of cooling products will be impossible, given the size and variation in bakeries and the fact that a reference point for ambient air temperature cannot be established.

There are a number of other practical difficulties for businesses. When do they issue a VAT receipt if requested to do so by customers? They will have to re-write till software systems and determine the price on which VAT would be charged, all set against the unworkable backdrop of legislation that will be prone to confusion and challenge.

Another issue relates to products sold on a seasonal basis—perhaps we can add mince pies to the list. At what point would HMRC agree with bakeries on the apportionment scheme for seasonal products such as mince pies? I doubt whether that would be able to be done in a timely way, and it shows that the Government’s tests are unworkable. If agreement on an apportionment scheme cannot be reached, the industry will have to fall back on legislation, which would be problematic at the very least.

The Government’s current proposals are unenforceable by HMRC and undeliverable by the industry. They will be confusing to customers and open to challenge in the courts.

[Andrew George (St Ives) (LD)]

My hon. Friend has ably demolished the Government’s primary claim that the measure is a means by which they can resolve an anomaly. The Treasury knows that wherever a line is drawn, even a new line, a new anomaly is created. Does my hon. Friend agree that under all Governments the Treasury tends to use sophistry when arguing that it is resolving an anomaly and that that is simply a way of increasing tax income?

[Stephen Gilbert]

My hon. Friend puts his finger on the Treasury’s intention, but I will demonstrate that the negative effects of the measure make it unlikely that any net additional revenue would be raised, when the damage to jobs, business rates and so on is taken on board. He is right to say that the Government expect to raise money from this measure—their impact assessment suggested that £50 million would be raised in the first year, rising to £120 million annually in subsequent years—but at what cost would that be to the baking industry in particular? I am afraid that it will cost jobs and investment in an industry that we want to see more of, not less, on our high streets.

Parliamentary Voting System and Constituencies Bill

Debate between Stephen Gilbert and Andrew George

Monday 1st November 2010 Commons Chamber

[Stephen Gilbert (St Austell and Newquay) (LD)]

This issue strikes at identity, community and history—all encapsulated in amendment 183, to which I and other Liberal Democrat colleagues have appended our names. Does my hon. Friend agree with me that the House should divide on amendment 183?

[Andrew George]

I do. I wish to bring my remarks to a close, as other Members wish to contribute to the debate.

I am glad that we have had the opportunity to talk about Cornwall. I hope that the Front Benchers are listening to our debate and I hope that it will not be necessary for an unelected Chamber to sort out the mess and that elected Members will ensure that we have the right type of election and the right type of boundary for elections to this place. We are not asking for any favours for Cornwall, as I have said. We just want the Government to be fair—“fair” being a favourite word of the coalition.

I shall support every amendment that achieves the objects that I have set out. I believe that it is a self-confident Government who are prepared to listen and to change their ways when the evidence is clearly opposed to the general direction in which they are proceeding.