With legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors are using more and more employed “in-house” advocates instead of independent barristers. Judges are refusing to allocate serious cases to Queens Counsel. And the morale of the independent criminal Bar is at an all-time low because so many are not even earning a living.

But those who think that the seemingly inevitable move toward “fusion” — in which there ceases to be a distinction between barristers and solicitors — will be good for the criminal justice system are wrong.

To begin with, the case for fusion has nothing to do with the quality of criminal justice: it is about money. But the idea, advanced by those in favour, that it would result in a considerable saving of money by the taxpayer is ridiculous. Solicitors, who have higher overheads, charge far higher hourly rates; indeed, they employ barristers in the magistrates’ courts because it is cheaper than having to appear themselves. Furthermore, barristers who pay their own overheads, health provision, annual leave and pensions would, if they became employees of the Crown Prosecution Service or another Government legal organisation, become even more of a drain on the taxpayer.

Second, the assumption that having both a solicitor to prepare a case and a barrister to present it unnecessarily doubles the work and therefore the cost of criminal trials is also nonsensical. Two jobs would still have to be done by two people, whether they are solicitors or barristers. Complicated cases involving a number of witnesses cannot be prepared and presented by one person alone. The former requires investigation, tracing of witnesses, taking of statements and getting them and their exhibits to court; the latter requires learning and marshalling the facts, being up to date on the law and planning and delivering effective advocacy. Furthermore, a solicitor running a business cannot suddenly drop work that he is doing to run off to court to present someone else’s case.

“In-house” barristers employed by a solicitor’s firm or even by a Government organisation face another problem. The employer requires him (or her) to perform certain work to generate fee income and the barrister, owing his job to the firm, has to comply. A self-employed barrister, on the other hand, owes allegiance to his client and to the court — he owes no professional allegiance to an employer, nor does he have to concern himself with whether his employer is making enough money or has available the required resources. Barristers’ independence and commitment to their client is of paramount importance to the integrity of our unique system of justice.

Fourth, you would not want your family doctor or another doctor in the same general medical practice to carry out brain surgery. You would want an independent consultant, skilled and experienced in his chosen field of work, to advise on the prognosis of a complicated illness. As with surgeons and medical consultants, barristers are trained specialists: they are not allowed to take on work that they are not equipped to perform. They must undergo continuing legal education. They are ceaselessly monitored by judges, solicitors and colleagues.

In practical terms, with increasing volumes of paperwork and the appeal court’s relentless changes to the law, judges, in order to conduct their cases as speedily as possible, have come to rely on both the experience and the integrity of the Bar. Inexperienced part-time in-house advocates slow the administration of justice and add to its expense. There is already plenty of anecdotal evidence that all is not well in criminal trials in which the accused is represented by an inexperienced solicitor-advocate.

There could be another knock-on effect: our judiciary has earned a reputation over the years for being independent-minded and not beholden to the wishes of its paymaster, the State. Much of that tradition of independence stems from the fact that the higher judiciary has always been drawn — and is still mostly drawn — from the Bar. That is not to say that judges chosen from solicitors or the employed Bar are not capable of independence. Of course they are. But life teaches us that it may be difficult to live down a life-time of obedience to a superior’s wishes.

It is clear that these advantages of our present dual profession of the law have immense value, not just for the integrity and efficiency of the criminal justice system but also for the perception of it as fair by those who use it and submit to its judgments.

If more and more young barristers, with student loans to repay and their already hopelessly inadequate legal-aid fees halved by their overheads of clerks fees, chambers rent, pensions, insurance, travel costs, hotels, books and equipment are driven away from the self-employed Bar to work as full-time employees, the British criminal justice system and its reputation for independence will suffer. If more senior barristers are driven into accepting employed status for the sake of their economic security, the situation will be even worse.

It is quite obvious that the public, the Government, members of Parliament and the civil service that guide our futures, have little idea of how much would be lost by “fusion”. That is because there has been no public debate — we just seem to be drifting very quickly in that direction. But there should be a public debate and it should start immediately, before the independence that is the glory of the British criminal justice system completely disappears.

Sir Ivan Lawrence, QC, is a member of Clarendon Chambers and a former Conservative MP

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