Families expelled from the Chagos Islands by the British Government to make way for the Diego Garcia US airbase today lost their legal battle to return home.

The law lords ruled that ministers had not acted unlawfully in using an Executive Order to prevent the families returning to the Indian Ocean islands from which they were expelled 40 years ago.

A majority ruling, with three law lords supporting the appeal and two opposing, was a bitter blow to campaigners, who have been fighting for a return to the 65 islands in the Chagos Archipelago, although not Diego Garcia itself.

Under an agreement signed in 1966, America leased Diego Garcia from Britain for 50 years and began developing the island into an air and naval facility. A “secret exchange of notes” also provided for the population to be removed.

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More than 2,000 islanders were removed forcibly removed from their home between 1965 and 1973. Most went to Mauritius although some now live in Britain. Only 500 of the original inhabitants are alive but with their descendants there are an estimated 4,000 exiles in Mauritius, the Seychelles and Britain.

The High Court dealt a blow to the Government in 2000 when it overturned an Immigration Ordinance from 1971 used to keep the Chagossians in exile. Robin Cook, the then Foreign Secretary, said there would be no appeal and a feasibility study would be carried out to into the possibility of their return.

However, the US military expressed concern about that the islanders' return would compromise the security of Diego Garcia. The base has been used to launch bombing missions for the campaigns in Iraq and Afghanistan.

Previous courts had ruled that the method used by the Government to stop the islanders returning – making an Order in Council under Royal Prerogative – was unlawful and an abuse of power by the Government executive.

Lawyers for the Foreign Secretary argued that the Royal Prerogative, which consists of discretionary powers, not subject to parliamentary scrutiny, that belong to the Queen but are exercised by Government Ministers, were immune from judicial scrutiny.

Lord Hoffmann today rejected the argument by the Chagossians' lawyers that the Crown did not have the power to remove their right of abode in what is now known as the British Indian Ocean Territory (BIOT).

He said Her Majesty in Council was entitled to legislate for a colony in the interests of the United Kingdom.

The Government had to give due weight to security interests, he said. The United States had expressed concern that any settlement on the outer islands would compromise the security of its base on Diego Garcia.

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