Stokes is not now part of England's Ashes squad as he awaits the result of the ongoing police investigation into that incident outside a nightclub following his arrest on suspicion of causing actual bodily harm on 25 September.
On the contrary, Hales will not face any charges from the police but can still be penalised by the ECB's disciplinary board.
While Stokes has said he is in New Zealand to visit his parents, who live in Christchurch, he could quickly rejoin the England team if he is not charged or if there is any delay in a charging decision.
Stokes has been serving a ban from worldwide cricket as British authorities probed his alleged involvement in a late-night fight outside a Bristol nightclub in September, and it remained in doubt whether he would play.
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Stokes returned to New Zealand, his country of birth, in November and has since played two one day matches for Canterbury in the Ford Trophy.
Ben Stokes is yet to fire in his Canterbury stint after falling for 34 runs in a one-day match against Auckland on Wednesday.
Despite naming him in the squad, England reaffirmed it will not settle on any form of punishment - nor contemplate Stokes' return - until he is either charged or cleared over the Bristol brawl that left another man with a fractured eye socket.
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On whether Stokes will actually be available or not, Bayliss said: " I've got absolutely no idea.
"Whether it's any more of a circus than it's already been, it's hard to say".
After making just two runs and had figures of 0-49 off nine overs in a defeat to Otago, he got off to a promising start in his second match. Whenever he comes back that's going to be a bit of a circus for sure. "There's been a fair bit of scrutiny that's come along with it in the first five or six weeks".
"We are still waiting to see what happens", Morgan said.
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"Alex Hales will now be considered for England selection following confirmation that he is no longer a suspect in relation to an incident in Bristol in September", the European Central Bank said in a statement on Monday night.