Is Wild Camping illegal?
Just to be clear, I'm not a lawyer. I've read a bit, and I've thought a bit, and this is my own view. So please read on, think on, but eventually make up your own mind, and do whatever you think is best.
Most people new to this sort of thing (me included) has questions about the legality and safety of sleeping wild sooner or later, and Al Humphreys (as ever) answers them jolly well in this straightforward article on his site. He concludes that he would not worry too much about the theoretical legal aspects of sleeping in a bivvy, that if you act with common sense and courtesy you will be fine, and quite sensibly puts the whole 'am I doing something naughty' question in perspective - "remember, you are acting far more illegally and dangerously every time you break the speed limit in a car".
That gave me the confidence to head out for a bivvy on my own, but once I started making plans to sleep out with my boys, I wanted to understand the position a little better, and to find out where on earth we could take on a night in the Wilds.
What follows (again, just my personal views as a non-lawyer) should help you get started, and hopefully let you see that it's not black and white, but please don't rely on this any more than anything else you read on the internet!
The short answer is that while wild-camping it is not explicitly "legal" without permission, it's not actually "illegal" either, and the difference is actually quite important.
If you are discovered sleeping somewhere, by someone who'd rather you weren't there, and you haven't asked permission, the result is that if you might very well be asked to leave. However it's very hard to see how you could be arrested, or prosecuted, unless you've been doing something else that actually is illegal, or unless it's on certain specific types of land (like railways). Read on to find out more...
In Scotland, things are pretty easy, and the presumption is generally that one or two nights' wild camping is permitted, so long as you are 100m from a road, and don't leave rubbish behind. In England and Wales, though, someone almost always owns the land you're sleeping on, and you technically ought only to be there with permission. There are exceptions - e.g. Dartmoor, and the Lakes, above the sheep walls, where common practice has been established even if not explicitly permitted. (The lakes park authority in fact stated that leave no trace overnight stays will be tolerated, following Freedom of Information requests by wild campers).
Otherwise in England, if you know the owner, then do ask in advance. We do this locally with a couple of kind local farmers / landowners, who were kind enough to trust us when asked nicely. And I occasionally send a bottle of slow gin their way as a thank you, and always try to tidy up litter while out, and generally leave a wood in a better state than we found it. The Backpackers Club is a good resource, and makes available to its members a useful list of landowners who do not mind people staying overnight.
However, although I need to note that you should place no reliance on my personal views about this, you don't necessarily need to let the lack of explicit legal right prevent you from responsible enjoyment of a night outdoors.
Many people (thought not all) take the view that if you don't know who the land belongs to, or it is difficult to find out in advance (often the case in the wilder areas), then if you are unobtrusive (no fires I'm afraid), leave no trace and cause no harm, it's often easier to ask for forgiveness than to ask permission.
An important point to note is wherever you pitch, the landowners or their representatives have the legal right to order you to move on, and you must comply. In a sense, it becomes harder to see how a landowner might take any action against you other than getting you to leave, if you've caused no damage and moved politely on when asked.
The issue is covered well on this site, and if you Google a bit, you'll find all sorts of slightly contradictory information. However, I personally tend towards the view expressed by a number of people that there's a difference between "illegal" and "not legal" - i.e. that something is illegal if forbidden by act or statute, which usually means that to break it is a criminal offence punishable by a prescribed penalty; but conversely that if an activity (e.g. camping overnight) is instead "not legal" somewhere, it simply means that you have no explicit right to do it. In this situation, there is a presumed right for the owner to deny or to regulate the activity, but importantly this is only enforceable by civil means, i.e. generally speaking, "trespass" is a civil offence with no penalty, (except e.g. on Railways etc.) and simply gives the owner (or their agent) the right to evict a trespasser, which you of course would be happy to comply with, and there the matter would end.
Legal niceties aside, though, we none of us want our first outings with kids to involve an "eviction", possibly by a rather grumpy farmer, in the middle of the night, and so I would certainly encourage you to seek permission. And don't assume that you'll be unwelcome. Many landowners are lovely people, who if they realise you're trying to bring up kids to respect and understand the land may well be more receptive to a request than you might expect. That's certainly been our experience.
But where this isn't practical, please don't assume that you're embarking on a life of crime.
Cause no harm, arrive late, leave early, use common sense, and if asked to move on then apologise, explain, (offer them a cup of tea, by all means) but then pack up and move on with good grace and no hard feelings.