Regulatory Reform in Thailand

This section examines how effectively the Government of Thailand have integrated ex post review into the rulemaking process and ensuring that they contribute to evidence-informed approaches. Just as new regulatory proposals need to be assessed to ensure they are fit for purpose and will yield net benefits to society, so, do existing regulations, which tend to greatly outnumber new ones, and which were often introduced under different circumstances. The OECD 2012 Recommendation on Regulatory Policy and Governance (OECD, 2012[1]) states that member countries “should conduct systematic reviews … to ensure that regulations remain … cost effective and consistent and deliver the intended policy objectives”.

Despite its importance, completing the regulatory lifecycle via ex post reviews tends to be the “forgotten child” of regulatory policy across OECD Members, with governments often adopting a “set and forget” approach. It is easy to see why this is the case. Proposed regulations often have uncertain impacts, attract media attention, and require political compromise to secure their passage. By contrast, existing laws do not elicit the same interest or sense of urgency as new laws (OECD, 2020[2]).

The requirement for ex post analysis in Thailand is grounded in Article 77 and 258 of the 2017 Constitution which stipulates that the government should “repeal or revise laws that are no longer necessary or unsuitable” and should “undertake an evaluation of the outcomes of the law at every specified period of time … with a view to developing all laws to be suitable to and appropriate for the changing contexts”. The obligations to carry out ex post review where subsequently enacted by the 2019 Act, which sets out a requirement for “periodic review of existing laws and their subordinate rules”. The scope of ex post analysis applies to both the primary legislation and subordinate legislation.

The 2019 Act further specifies that the ex post review requirements do not apply to limited-time expired legislation or those relevant to symbolic representations, such as those for academic accreditations, neither laws relating to the restructuring of government ministries. Section 29 also states that “Legal Codes” nor “other laws as prescribed in the ministerial regulation” are subject to ex post assessment. The current ministerial regulation under this clause exempts 1) palace laws, 2) laws concerning the administration of religious organisations, 3) laws concerning the personnel management of government officials, and 4) laws concerning immunities and the protection of international organisations and meetings in Thailand.

Furthermore, section 34 of the 2019 Act requires that all applicable laws must be evaluated every five years or if: 1) there is a petition from citizens or organisations to review the law and the responsible state agency agrees; 2) the state agency receives a recommendation from the Law Reform Commission; or 3) other cases as prescribed in ministerial regulation. The completed ex post review report is be published in the central system and is shared with the Law Reform Commission.

In order to move the Thai ex post review framework closer to international best practice, the OECD made a series of recommendations for reform as part of the 2020 review (set out in Box 4.1).

Ex post review requirements have been established within the Thai GRP framework, as described previously. In the period since the last OECD report, there have been some areas of progress, including relatively successful regular ex post reviews as mandated under the 2019 Act as demonstrated by statistics collected by the OCS as well as several “pioneer projects” undertaken by the OCS and LRC which have resulted in proposals to repeal a number of old and neglected laws. However, the ex post review process faces a number of fundamental challenges to ensure that it becomes an effective part of the regulatory policy process, including the absence of a proportionality test to help OCS focus their scrutiny. Since the 2020 OECD report, Thailand has undertaken two reform initiatives focused on ex post reviews.

Since the launch of the Central Law Portal discussed in the previous section (“The introduction of the Central Law Portal”) more than 207 ex post reviews mandated by the 2019 Act have been published on the website. The OCS has recently collected some statistics on these reviews which reflect positively on the ex post regime (OCS, 2024[4]). Since its implementation, of the 207 ex post reviews, 124 of these reviews resulted in a proposal to amend the relevant law or regulation and 19 resulted in a proposal to repeal.1 This indicated that ex post reviews are encouraging responsible ministries are making use of the ex post review to think critically about the laws and regulations for which they are responsible and not simply undertaking the exercise as a formality. The OCS’s review of the quality of ex post reviews also highlighted that statistical data are commonly included in ex post reviews but are lacking in ex ante RIA.

In order to further facilitate ex post review in Thailand in addition to the requirements under section 34 of the 2019 Act, the Council of Ministers issued a resolution on 4 November 2021 ordering all ministries and other government agencies to review subordinate regulations for which they are responsible. They stipulated that the (ex post) RIS must contain the following information:

• the statutory provision(s) that gives effect to the subordinate regulation in question. 

• burdens it creates for the people (and businesses) e.g. what the costs of interactions with the government agency are in this matter. 

• rules that may overstep the said statutory provision(s) (if any). 

• whether or not the regulation allows for electronic means of communication with the stakeholders. 

• process and time estimates that are required for the government agency to process the application. 

• stipulations regarding the permit (if any) including the valid period of the permit, renewal process, cost-benefit analysis of the permit system. 

• clarity or certainty of the criteria, process, or conditions imposed by the regulation. 

• other laws or regulations on the same topic or issue. 

• provisions that confer discretionary authority to government officials (if any). 

• documentary requirements relating to the regulatory process. 

• fee or other types of charges levied upon the applying person; and

• conclusion by the responsible government agency (to repeal, amend, or keep the regulation).

However, the Thai administration said that in practice, all agencies determined that the regulations they were responsible for were necessary. The Thai administration noted that this may have been because the same agencies responsible for a given regulation were responsible for the self-assessment of its necessity. This further highlights the need for oversight throughout the regulatory policy cycle.

As of June 2023, the ex post review of primary laws under the 2019 Act has led to two significant changes which were proposed by the LRC. The first of these was a cross-sectional review conducted as a pilot program of OCS that revealed a list of 6 laws that have not been enforced in several years and are otherwise obsolete or redundant.2 These outdated laws were repealed through omnibus-style legislation titled: Act on Repeal of Certain Laws that Are No Longer Necessary or Redundant B.E. 2565 (2022), this process was not part of the regulatory guillotine discussed in Chapter 1 but an initiative from the LRC which it conducts every 3-5 years. In addition to the cross-sectional review, OCS also conducted an in-depth review on outdated payment systems in Thailand and the burden they imposed on people and business. During this review OCS uncovered that creditor preferred accepting payments via cheque because in Thailand, a bad cheque is punishable through the police and judiciary. OCS found that the government had effectively been subsidizing debt collection which was also the source of the resistance of major creditors to Thailand’s intention to digitise their payment system. Currently there is a proposal to decriminalise the failure to honour a cheque.

Thailand has set out ambitious goals to conduct an ex post review most of their legislation within five years as set out under section 34 of the 2019 Law. To achieve this goal Thailand will need to manage their resources efficiently, the section below will explore some ways in which Thailand may do so through a proportional approach to its review. Where ex ante RIA was conducted on the law under review it is important that the ex post review be linked to the ex ante RIA, this can also make the review easier given a proper ex ante RIA should have set out SMART goals for the regulation to have met. Finally, before examining and potentially eliminating old or unnecessary regulations this section stresses the importance of good regulatory governance from the start of policy, without these approaches like a regulatory guillotine risk replacing unnecessary regulations and burdens with more of the same.

In implementing both ex ante and ex post RIA, limited government resources should be targeted at the most impactful proposals (OECD, 2020[5]). While the elimination of old and unenforced laws is helpful, because the laws were not enforced this amount to a legislative clean up. The point of RIA is to ensure policy is efficient and effective, eliminating unused laws and regulations helps to ensure that policy on the books is effective, but it does not address the efficiency aspect of RIA. Ex post RIA should ensure that the policy being examined continues to be the most efficient policy to achieve the desired outcome, in other words, that it achieves the greatest benefit at the least cost. If a policy is effectively unused or redundant, it is unlikely that that policy is imposing a burden on business or consumers and therefore may not be a priority area for action.

In recent years, Thailand has introduced a relatively high volume of new laws and in general has a large regulatory stock. In order to better manage the limited administrative and analytical resource, ex post evaluations should be conducted on the highest impact regulatory policies first, as capacity grows and high impact ex post reviews are completed, governments can begin to review lower impact policies. The introduction of a proportionality test is a helpful tool to prioritise ex post assessments. For example, at the policy design phase, a proportionality test at the ex ante phase that indicates a regulation should be subject to the highest level of study and evidence standards for the ex ante RIA would also likely be prioritised for ex post review. Unless, for example, the regulatory proposal was clearly time limited in way that would hinder an ex post RIA.

Similar to the discussion around resource planning in the ex ante RIA discussion above, it does not seem that Thailand engages in forward planning of ex post RIA. Planning for ex post RIA is often done while the law is being drafted. Based on the ex ante RIA policymakers should be aware of whether the proposed rule will be low, medium or high impact and can often include review mechanisms directly into the law itself. There is also an opportunity at this stage to ensure that the necessary data to assess the rule ex post will be collected, again the responsible administrative bodies can action this or, as an example: data collection requirements can be written into the law. Again, proportionality should be used when applying any extra requirements to a given regulation, it can be counter-productive to require businesses to collect onerous amounts of data to ensure compliance with a relatively low-risk and low-impact regulation.

As noted above the Thai administration has undertaken several projects to review the existing stock of regulations. Many of these regulations may have been in place before the recent legislative changes and would not have undergone an ex ante RIA. Those regulations in the existing stock that have not undergone RIA will likely lack SMART objectives by which the success of said regulation may be given by. With no cost and benefit analysis or objectives set by ex ante RIA it may be difficult for the Thai administration to take the necessary proportional approach to reviewing the existing stock of regulation. One way to overcome this lack of information with which to assess proportionality could be to rely on stakeholder consultation. The government could ask citizens and businesses to point out burdensome regulations of relatively little benefit or necessity. This can assist the Thai administration in to prioritising its review. Some examples of how this has been done in other countries are discussed in Box 4.2.

While reviewing the existing stock of regulations is an important endeavour, it is equally important, if not more urgent that the Thai administration quickly establish good regulatory governance practices. If the government does not establish a principled, evidence-informed approach to adopting new regulation any regulation eliminated by ex post review initiatives like the those discussed risk being replaced but similarly burdensome and potentially unnecessary regulation. Using tools like those mentioned in Box 4.2 can be useful in ensuring the Thai administration only focuses on reviewing the highest impact regulation for now, once a robust regulatory governance framework is in place, the administration would then be better prepared to undertake a more comprehensive review like that contemplated in the Council of Ministers resolution of 4 November 2021.

Effective ex post RIA must be linked to the objectives and measures set out in the ex ante RIA. The regulatory policy cycle should be circular and iterative, to properly assess the effectiveness and efficiency of a policy, and know whether changes should be made, the respective policy must be compared to its original criteria. However, in addition to understanding if the cost and benefits of the ex ante RIA have been achieved, governments must assess the ongoing validity of the original objective of the policy when undertaking ex post RIA. As technologies and priorities change over the life of a policy it is quite possible that goals may have shifted, and a given policy may require adjustment to ensure it continues to be fit for purpose.

In order to be comparable to the ex ante RIA, both the ex ante and ex post RIA should both follow SMART objectives: “Specific, Measurable, Assignable, Realistic, and Time-related”. As discussed above in the ex ante RIA section, the Thai government requires entities to state “Objective and Goal of the Intervention”, but does not require the entity to create specific and measurable targets about what the regulation is supposed to achieve. In order to have a complete regulatory policy cycle the quantitative and qualitative assessments of the ex post RIA should be able to measure the specific goals and forecasts set out in the ex ante RIA. As noted in the beginning of this section (“The success of ex post reviews under the 2019 Act”) the OCS has found ministries commonly make use of statistical information in ex post assessment but not in ex ante RIA. However, with no similar information included at the ex ante stage, it may be difficult to make comparisons and measure policy outcomes of the policy.

Furthermore, the proportionality assessment conducted as part of the ex ante RIA as well as the projected magnitude of the cost, benefits and other qualitative and quantitative effects can help inform the prioritisation of ex post RIA evaluations. Regulations with the highest magnitude of effects forecast at the ex ante stage should be prioritised for ex post evaluation and among high impact policies, those with more uncertainty in their predicated effects should take precedence. Regulators should take the opportunity to define the benchmarks, ideally SMART objectives, and timelines by which regulation should be reviewed ex post, when creating the initial regulation based on information contained in the ex ante RIA.

The OECD Best Practice Principles for Reviewing the Stock of Regulation (OECD, 2020[2]) state that at the stage when regulations are being developed, there would generally be a clearer appreciation of the sort of ex post review that would be most appropriate, given the nature of the regulation, its context and any potential uncertainties about its effects. There should be explicit provision in agency budgets to cover the costs of reviewing the regulations for which they have responsibility. The Best Practice Principles for Reviewing the Stock of Regulation also note that if funding for the ex post evaluation is not determined at the inception of a regulation it is more likely that they would be avoided, deferred or undertaken in a form inadequate for the purpose (OECD, 2020[2]).

The current legislative obligations for ex post review, in the 2019 Act, do not detail how these evaluations can be funded, nor makes provisions for data collection. As discussed in the introduction to this section the 2019 Act require the review of laws every in years, which means that all applicable laws will need to be reviewed by 2024 to meet that goal. To do so the Thai government will likely need to add analytical capacity to the various state agencies responsible for reviewing outcomes which will likely require additional funding targeted at ex post review.

The OECD has been provided two examples of ex post reviews by the Thai administration; these were conducted under the 2019 Act’s requirement to review regulatory stock every five years. While they were not in a format able to be easily translated, they appeared to be of different levels of depth and quality. An ex post review provided by the Bank of Thailand seemed to be of high quality and supported by both quantitative and qualitative evidence. On the other hand, an ex post review provided by Pubic Works, Town and Country Planning appears to be much more simplistic and does not appear to contain quantitative evidence. The Thai administration noted that the high quality of the Bank of Thailand’s ex post review was likely due to the depth of analysis highly quantitative nature of their usual work, the Bank of Thailand is also staffed by highly skilled economists, these attributes are not common across the various ministries and agencies. As discussed above, it is crucial that ex post reviews are linked to the measurable objectives set out at when the legislation was enacted, having the analytical capacity to assess these measures is equally important. Understandably, the level of analysis undertaken by the Bank of Thailand may not be realistic for all ministries and agencies, but the Bank’s example is something to aspire toward.

Conducting ex post reviews of varying depth can be a good practice, however the decision on the depth of review should be evidence based. This is why proportionality analyses and setting out timelines and standards for ex post reviews at the outset of a policy is important. Doing so allows the responsible authority to plan for and respond to the level of analysis required for the ex post review. It also seems likely that the ex post review conducted by the Bank of Thailand may have been of higher-quality since National Bank’s typically possess more analytical capacity that line ministries with teams of economists, data scientists, and people with finance expertise. As discussed throughout this report, the Thai RIA framework would benefit from increased analytical capacity in line ministries.

Despite progress in certain areas, Thailand is facing similar challenges to many OECD Members in embedding ex post review as an integral part of the regulatory policy cycle. Along with some new recommendations, many of the recommendations from the OECD 2020 review continue to stand. The OECD recommends the following reforms to the Thai government:

• Consider less resources intensive approaches to conducting ex post reviews where appropriate. This could help optimise resources currently available for conducting reviews while remaining in line with OECD best practice. For instance, “simpler” conformity checks or evaluations of administrative burdens could help supplement the requirement to conduct full reviews. The choice evaluation methods could be informed by the strategic priorities of the Government, for instance, about simplifying sectoral regulatory frameworks; promoting competition; or seeking more social inclusion.

• Consider how ex post evaluation clauses could be associated with the subsequent data gathering strategy and clear financial resources to increase the link between RIA and ex post evaluation.

• Continue rolling out capacity building/training on ex post review techniques and methodologies.

• As with ex ante RIA, implement a forward planning process and proportionality tests to focus ministries resources on potentially high impact legislation and regulations.

• Focus efforts on only the most burdensome regulations until a robust ex ante regulatory governance system is in place to avoid replacing unnecessary regulations with more unnecessary regulation.

See Box 4.3 for an example of how New Zealand can incorporate some of these principles into its unique policy to manage its regulatory stock. This recommendation was originally made in 2020 and is still applicable but has been expanded.

• Prepare for the upcoming need to review applicable laws as required under section 34 of the 2019 Law. Many of the recommendations included in this section will assist with this but in addition to preparing guidance, applying proportionality, and efficiently allocating resources the Thai administration may also wish to:

  • Explicitly allocate and increase funding to bodies responsible for evaluating laws to ensure they have the analytical capacity and staff necessary to accomplish their task.

  • Ensure there is oversight of the review process to ensure that the responsible bodies are undertaking the review in a proportional manner, and that reviews high impact regulations are supported by high-quality evidence and analysis.

• Upgrade ex post review practices over the medium term by i) defining and enforcing clear guidance quality standards for evaluation planning, designing and management; ii) promoting the establishment of multi-stakeholder groups accompanying and overseeing major evaluations; and iii) linking the findings from (major reviews) to the programming and planning of new government initiatives.

• Produce a user-friendly manual and dedicated capacity building training series to accompany the implementation of the ex post review requirements. This should be done in co-operation between OCS and relevant ministries to ensure the manuals and training events are fit for purpose. Possible areas where further guidance could be provided might notably include placing more emphasis on how to plan the design, management, and execution of an evaluation; how to determine the “intervention logic” underpinning the evaluation questions and criteria; and how to map and involve relevant stakeholders in the exercise. Set periodic times to review and revise these provisions in partnership with the line ministries and agencies. This recommendation was originally made in 2020 and is still applicable.

[4] OCS (2024), A preliminary finding after 5 years of the Act on Legislative Drafting and Evaluation of Law B.E. 2562, https://ocs-symposium2024.com/.

[3] OECD (2021), Thailand Regulatory Management and Oversight Reforms: A Diagnostic Scan, OECD Reviews of Regulatory Reform, OECD Publishing, Paris, https://doi.org/10.1787/2dbaa2e5-en.

[5] OECD (2020), Regulatory Impact Assessment, OECD Best Practice Principles for Regulatory Policy, OECD Publishing, Paris, https://doi.org/10.1787/7a9638cb-en.

[2] OECD (2020), Reviewing the Stock of Regulation, OECD Best Practice Principles for Regulatory Policy, OECD Publishing, Paris, https://doi.org/10.1787/1a8f33bc-en.

[7] OECD (2019), Better Regulation Practices across the European Union, OECD Publishing, Paris, https://doi.org/10.1787/9789264311732-en.

[6] OECD (2015), OECD Regulatory Policy Outlook 2015, OECD Publishing, Paris, https://doi.org/10.1787/9789264238770-en.

[1] OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD Publishing, Paris, https://doi.org/10.1787/9789264209022-en.

[8] OECD (2011), Regulatory Policy and Governance: Supporting Economic Growth and Serving the Public Interest, OECD Publishing, Paris, https://doi.org/10.1787/9789264116573-en.

[9] Treasury of New Zealand (2024), Regulatory Stewardship, https://www.treasury.govt.nz/information-and-services/regulation/regulatory-stewardship (accessed on 13 December 2024).